these are some Case citations and explanations...I gleaned this from thousands of pages of research, gleaned it down to some 30 pages or so...hope it is of some use...this case research, basically expressing that the government wants to Restrict Viewpoints...i..e. that the First Amendment is a permit etc..and to prohibt Individuals from speaking out..i.e. ?6-up etc..?...forest Service wants someone to sign so that they can ?legally? be in the gathering with their guns etc.. and not be harassed...also..govt does not agree with our VIEWPOINT/messages, and/or the forms or forums gathering attendees use...also, they would like it so that some bureaucrat can place gathering folks on a ?reservation?, until the forest Service finds a space that is acceptable for a gathering...bullshit...paper chiefs...and reservation blues...This is for general distribution, for posting on web pages etc..but specifactly for those who are "Legal shitter-digging" love plunk
CLARK v. COMMUNITY FOR CREATIVE NON-VIOLENCE, 468 U.S. 288 (1984) 468
****note the word ?precisely
As in City Council of Los Angeles v. Taxpayers for Vincent, the regulation "responds precisely to the substantive problems which legitimately concern the [Government]." 466 U.S., at 810.
constitutional power of the Government to enforce. And for the reasons we have discussed above, there is a substantial Government interest in conserving park property, an interest that is plainly served by, and requires for its implementation, measures such as the proscription of sleeping that are designed to limit the wear and tear on park properties. That interest is unrelated to suppression of expression.
The District Court specifically found that the regulations have been consistently applied and enforced in a fair and nondiscriminatory manner.
App. to Pet. for Cert. 106a-108a.
U.S. Supreme Court
SPENCE v. WASHINGTON, 418 U.S. 405 (1974) 418 U.S. 405
Argued January 9, 1974.
Decided June 25, 1974.
.. The undisputed facts are that appellant "wanted people to know that I thought America stood for peace." To be sure, appellant did not choose to articulate his views through printed or spoken words. It is therefore necessary to determine whether his activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments, for as the Court noted in United States v. O'Brien, 391 U.S. 367, 376 (1968), "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea." But the nature of [418 U.S. 405, 410] appellant's activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression.
We are also unable to affirm the judgment below on the ground that the State may have desired to protect the sensibilities of passersby. "It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Street v. New York, supra, at 592. Moreover, appellant did not impose his ideas upon a captive audience. Anyone who might have been offended could easily have avoided the display. See Cohen v. California, 403 U.S. 15 (1971). Nor may appellant be punished for failing to show proper respect for our national emblem. Street v. New York, supra, at 593; Board of Education v. Barnette, supra.6
It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972). Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). Discrimination against speech because of its message is presumed to be unconstitutional. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. ___, ___ (1994) (slip op., at 16-19).
These rules informed our determination that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991). When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. See R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992).
Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. See Perry Ed. Assn. v. [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 8] Perry Local Educators' Assn., 460 U.S. 37, 46 (1983).
U.S. Supreme Court
ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) No. 94-329.
Argued March 1, 1995
Decided June 29, 1995
Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not "reasonable in light of the purpose served by the forum," Cornelius, supra, at 804-806; see also Perry Ed. Assn., supra, at 46, 49, nor may it discriminate against speech on the basis of its viewpoint, Lamb's Chapel, supra, at ___ (slip op., at 6-7); see also Perry Ed. Assn., supra, at 46; R. A. V., supra, at 386-388, 391-393; cf. Texas v. Johnson, 491 U.S. 397, 414-415 (1989). Thus, in determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations. See Perry Ed. Assn., supra, at 46.
The SAF is a forum more in a metaphysical than in [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 9] a spatial or geographic sense, but the same principles are applicable. See, e.g., Perry Ed. Assn., supra, at 46-47. There, a school district had opened school facilities for use after school hours by community groups for a wide variety of social, civic, and recreational purposes. The district, however, had enacted a formal policy against opening facilities to groups for religious purposes. "denied for any reason other than the fact that the presentation would have been from a religious perspective." 508 U.S., at ___ (slip op., at 8-9). Our conclusion was unanimous: "[I]t discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child-rearing except those dealing with the subject matter from a religious standpoint." Ibid.
If there is to be assurance that the Establishment Clause retains its force in guarding against those governmental actions it was intended to prohibit, we must in each case inquire first into the purpose and object of the governmental action in question and then into the practical details of the program's operation. Before turning to these matters, however, we can set forth certain general principles that must bear upon our determination. 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 [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 19] broad and diverse. See Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. ___, ___ (1994) (slip op., at 16) (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 Services for Blind, 474 U.S. 481, 487-488 (1986); Mueller v. Allen, 463 U.S. 388, 398-399 (1983); Widmar, 454 U.S., 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 religious speakers who participate in broad-reaching government programs neutral in design. See Lamb's Chapel, 508 U.S., at ___; Mergens, 496 U.S., at 248, 252; Widmar, supra, at 274-275.
"religious organizations," which are those "whose purpose is to practice a devotion to an acknowledged ultimate reality or deity." Pet. for Cert. 66a.
"[T]he dissent fails to establish that the distinction [between `religious' speech and speech `about' religion] has intelligible content. There is no indication when `singing hymns, reading scripture, and teaching [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 25] biblical principles' cease to be `singing, teaching, and reading' - all apparently forms of `speech,' despite their religious subject matter and become unprotected `worship.' . . .
"[E]ven if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Merely to draw the distinction would require the university - and ultimately the courts - to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. E.g., Walz [v. Tax Comm'n of New York City, 397 U.S. 664 (1970)]." 454 U.S., at 269-270, n. 6 (citations omitted).
"We have time and again held that the government generally may not treat people differently based on the God or gods they worship, or don't worship." Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. ___, ___ (1994) (slip op., at 4) (O'CONNOR, J., concurring in part and concurring in judgment). This insistence on government neutrality toward religion explains why we have held that schools may not discriminate against religious groups by denying them equal access to facilities that the schools make available to all. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. ___ (1993); Widmar v. Vincent, 454 U.S. 263 (1981). Withholding access would leave an impermissible perception that religious activities are disfavored: "the message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion." Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 248 (1990) (plurality opinion). "The Religion Clauses prohibit the government from favoring religion, but they provide no warrant for discriminating against religion." Kiryas Joel, supra, [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 2] at ___ (slip op., at 7) (O'CONNOR, J.). Neutrality, in both form and effect, is one hallmark of the Establishment Clause.
Madison wrote against a background in which nearly [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 7] every Colony had exacted a tax for church support, Everson, supra, at 10, n. 8, the practice having become "so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence," 330 U.S., at 11 (footnote omitted). Madison's Remonstrance captured the colonists' "conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group." Ibid.1 Their [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 8]
("The `establishment of religion clause' . . . means at least this . . . .. 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"); see School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 385 (1985) ("Although Establishment Clause jurisprudence is characterized by few absolutes, the Clause does absolutely prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith"); Committee for Public Education v. Nyquist, 413 U.S., at 780 ("In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid"); id., at 772 ("Primary among those evils" against which the Establishment Clause guards "have been sponsorship, financial support, and active involvement of the sovereign in religious activity") (citations and internal quotation marks omitted); see also Lee v. Weisman, 505 U.S. 577, 640 (1992) (SCALIA, J., dissenting) ("The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty") (emphasis omitted); cf. Flast v. Cohen, 392 U.S. 83, 103-104 (1968) (holding that taxpayers have an adequate stake in the outcome of Establishment Clause litigation to [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 13] satisfy Article III standing requirements, after stating that "[o]ur history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general"). (O'CONNOR, J., concurring); id., at 2 ("Neutrality, in both form and effect, is one hallmark of the Establishment Clause"); Capitol Square Review and Advisory Board v. Pinette, ___ U.S. ___, ___ (slip op., at 6) (O'CONNOR, J., concurring in part and concurring in the judgment) ("the Establishment Clause forbids a State from hiding behind the application of formally neutral criteria and remaining studiously oblivious to the effects of its actions. . . . [N]ot all State policies are permissible under the Religion Clauses simply because they are neutral in form"). This recognition reflects the Court's appreciation of two general rules: that whenever affirmative government aid ultimately benefits religion, the Establishment Clause requires some justification beyond evenhandedness on the government's part; and that direct public funding of core sectarian activities, even if accomplished pursuant to an evenhanded program, would be entirely inconsistent with the Establishment Clause and would strike at the very heart of the Clause's protection. See ante, at 22 ("We do not confront a case where, even under a neutral program that includes nonsectarian recipients, the government is making direct money payments to an institution or group that is engaged in religious activity"); ante, at 19-20, 23-24; see also ante, at 2 (O'CONNOR, J., concurring) ("[Our] decisions . . . provide no precedent for the use of public funds to finance religious activities"). [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 17]
Accordingly, the prohibition on viewpoint discrimination serves that important purpose of the Free Speech Clause, which is to bar the government from skewing public debate. Other things being equal, viewpoint discrimination occurs when government allows one message while prohibiting the messages of those who can reasonably be expected to respond. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 785-786 (1978) ("Especially where . . . the legislature's suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended") (footnote omitted); Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175-176 (1976) ("To permit one side of a debatable public question to have a monopoly in expressing its views . . . is the antithesis of constitutional guarantees") (footnote omitted); United States v. Kokinda, 497 U.S. 720, 736 (1990) (viewpoint discrimination involves an "inten[t] to discourage one viewpoint and advance another") (plurality opinion) (citations and internal quotation marks omitted). It is precisely this element of taking sides in a public debate that identifies viewpoint discrimination and makes it the most pernicious of all distinctions based on content. Thus, if [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 35] government assists those espousing one point of view, neutrality requires it to assist those espousing opposing points of view, as well.
See, e.g., Madison's Remonstrance, reprinted in Everson, 330 U.S., at 64, 1 ("[I]n matters of Religion, no man's right is abridged by the institution of Civil Society, and . . . Religion is wholly exempt from its cognizance"); id., at 67, 6 (arguing that State support of religion "is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world"); ibid., 7 ("[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operatio
Clark vs..Creative non-violence:
[Footnote 12] See, e. g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978). It should be noted, however, that there is a context in which regulations that are facially content-neutral are nonetheless subjected to strict scrutiny. This situation arises when a regulation vests standardless discretion in officials empowered to dispense permits for the use of public forums. See, e. g., Lovell v. City of Griffin, 303 U.S. 444 (1938); Hague v. CIO, 307 U.S. 496 (1939); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).
By narrowly limiting its concern to whether a given regulation creates a content-based distinction, the Court has seemingly overlooked the fact that content-neutral restrictions are also capable of unnecessarily restricting protected expressive activity.13 To be sure, the general prohibition against content-based regulations is an essential tool of First Amendment analysis. It helps to put into operation the well-established principle that "government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972). The Court, however, has transformed the ban against content distinctions from a floor that offers all persons at least equal liberty under the First Amendment into a ceiling that restricts persons to the protection of First Amendment equality - but nothing more.14 The consistent [468 U.S. 288, 314] imposition of silence upon all may fulfill the dictates of an evenhanded content-neutrality. But it offends our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S., at 270.15
Second, the disposition of this case reveals a mistaken assumption regarding the motives and behavior of Government officials who create and administer content-neutral regulations. The Court's salutary skepticism of governmental decisionmaking in First Amendment matters suddenly dissipates once it determines that a restriction is not [468 U.S. 288, 315] content-based. The Court evidently assumes that the balance struck by officials is deserving of deference so long as it does not appear to be tainted by content discrimination. What the Court fails to recognize is that public officials have strong incentives to overregulate even in the absence of an intent to censor particular views. This incentive stems from the fact that of the two groups whose interests officials must accommodate - on the one hand, the interests of the general public and, on the other, the interests of those who seek to use a particular forum for First Amendment activity - the political power of the former is likely to be far greater than that of the latter.16
****Note: here is a case concerning the liability of ?state officers acting in concert with federal officers?
In such a case it is not unusual to ask for reargument (Sherman v. United States, 356 U.S. 369, 379, n. 2, Frankfurter, J., concurring) even on a constitutional question not raised by the parties. In Abel v. United States, 362 U.S. 217, the petitioner had conceded that an administrative deportation arrest warrant would be valid for its limited purpose even though not supported by a sworn affidavit stating probable cause; but the Court ordered reargument on the question whether the warrant had been validly issued in petitioner's case. 362 U.S., at 219, n., par. 1; 359 U.S. 940. In Lustig v. United States, 338 U.S. 74, the petitioner argued that an exclusionary rule should apply to the fruit of an unreasonable search by state officials solely because they acted in concert with federal officers (see Weeks v. United States, 232 U.S. 383;
Note:****The rule that this Court will not consider issues not raised by the parties is not inflexible and yields in "exceptional cases" (Duignan v. United States, 274 U.S. 195, 200) to the need correctly to decide the case before the court. E. g., Erie R. Co. v. Tompkins, 304 U.S. 64; Terminiello v. Chicago, 337 U.S. 1.
U.S. Supreme Court
UNITED STATES v. O'BRIEN, 391 U.S. 367 (1968) 391 U.S. 367
Argued January 24, 1968.
Decided May 27, 1968.*
," 32 CFR 1617.1, and wilful violation of regulations promulgated under the Act was made criminal by 50 U.S.C. App. 462 (b) (6). The court, however, upheld O'Brien's conviction under 462 (b) (6), which in its view made violation of the nonpossession regulation a lesser included offense of the crime defined by the 1965 Amendment. Held:
(b) When "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. P. 376.
(c) A governmental regulation is sufficiently justified if it is within the constitutional power of the Government and furthers [391 U.S. 367, 368] an important or substantial governmental interest unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to that interest.
This Court has held that when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling;22 substantial;23 subordinating;24 [391 U.S. 367, 377] paramount;25 cogent;26 strong.27 Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to 12 (b) (3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it.
The case at bar is therefore unlike one where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. In Stromberg v. California, 283 U.S. 359 (1931), for example, this Court struck down a statutory phrase which punished people who expressed their "opposition to organized government" by displaying "any flag, badge, banner, or device." Since the statute there was aimed at suppressing communication it could not be sustained as a regulation of noncommunicative conduct. See also, NLRB v. Fruit & Vegetable Packers Union, 377 U.S. 58, 79 (1964) (concurring opinion).
In conclusion, we find that because of the Government's substantial
interest in assuring the continuing availability of issued Selective Service
certificates, because amended 462 (b) is an appropriately narrow means
of protecting this interest and condemns only the independent noncommunicative
impact of conduct within its reach, and because the noncommunicative impact
of O'Brien's act of burning his registration certificate frustrated the
Government's interest, a sufficient governmental interest has been shown
to justify O'Brien's conviction. III.
O'Brien finally argues that the 1965 Amendment is unconstitutional as enacted because what he calls the "purpose" of Congress was "to suppress freedom of [391 U.S. 367, 383] speech." We reject this argument because under settled principles the purpose of Congress, as O'Brien uses that term, is not a basis for declaring this legislation unconstitutional.
It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the Court long ago stated:
"The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted." McCray v. United States, 195 U.S. 27, 56 (1904).
This fundamental principle of constitutional adjudication was reaffirmed and the many cases were collected by Mr. Justice Brandeis for the Court in Arizona v. California, 283 U.S. 423, 455 (1931).
Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature,30 because the benefit to sound decision-making in [391 U.S. 367, 384] this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one
.. Similarly, in Gomillion, the Court sustained a complaint which, if true, established that the "inevitable effect," 364 U.S., at 341, of the redrawing of municipal boundaries was to deprive the petitioners of their right to vote for no reason other than that they were Negro. In these cases, the purpose of the legislation was irrelevant, because the inevitable effect - the "necessary scope and operation," McCray v. United States, 195 U.S. 27, 59 (1904) - abridged constitutional rights. The statute attacked in the instant case has no such inevitable unconstitutional effect, since the destruction of Selective Service certificates is in no respect inevitably or necessarily expressive. Accordingly, the statute itself is constitutional.
MR. JUSTICE HARLAN, concurring.
The crux of the Court's opinion, which I join, is of course its general statement, ante, at 377, that:
"a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."
I wish to make explicit my understanding that this passage does not foreclose consideration of First Amendment claims in those rare instances when an "incidental" restriction upon expression, imposed by a regulation which furthers an "important or substantial" governmental interest and satisfies the Court's other criteria, in practice has the effect of entirely preventing a "speaker" [391 U.S. 367, 389] from reaching a significant audience with whom he could not otherwise lawfully communicate. This is not such a case, since O'Brien manifestly could have conveyed his message in many ways other than by burning his draft card.
note: Ward vs Rock against Racism
As a threshold matter, it is far from clear that respondent should be permitted to bring a facial challenge to this aspect of the regulation. Our cases permitting facial challenges to regulations that allegedly grant officials unconstrained authority to regulate speech have generally involved licensing schemes that "ves[t] unbridled discretion in a government official over whether to permit or deny expressive activity." Plain Dealer, supra, at 755. The grant of discretion that respondent [491 U.S. 781, 794] seeks to challenge here is of an entirely different, and lesser, order of magnitude, because respondent does not suggest that city officials enjoy unfettered discretion to deny bandshell permits altogether. Rather, respondent contends only that the city, by exercising what is concededly its right to regulate amplified sound, could choose to provide inadequate sound for performers based on the content of their speech. Since respondent does not claim that city officials enjoy unguided discretion to deny the right to speak altogether, it is open to question whether respondent's claim falls within the narrow class of permissible facial challenges to allegedly unconstrained grants of regulatory authority. Cf. 486 U.S., at 787 (WHITE, J., dissenting) (arguing that facial challenges of this type are permissible only where "the local law at issue require[s] licenses - not for a narrow category of expressive conduct that could be prohibited - but for a sweeping range of First Amendment protected activity").
CHURCH OF LUKUMI BABALU AYE v. CITY OF HIALEAH, 508 U.S. 520 (1993)
508 U.S. 520
CHURCH OF LUKUMI BABALU AYE, INC. v. CITY OF HIALEAH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Argued November 4, 1992
Decided June 11, 1993
under, inter alia, the Free Exercise Clause of the First Amendment. Although acknowledging that the foregoing ordinances are not religiously neutral, the District Court ruled for the city, concluding, among other things, that compelling governmental interests in preventing public health risks and cruelty to animals fully justified the absolute prohibition on ritual sacrifice accomplished by the ordinances, and that an exception to that prohibition for religious conduct would unduly interfere with fulfillment of the governmental interest, because any more narrow restrictions would [508 U.S. 520, 521] be unenforceable as a result of the Santeria religion's secret nature. The Court of Appeals affirmed.
The judgment is reversed.
936 F.2d 586, (CA 11 1991) reversed.
JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, IIA-1, II-A-3, II-B, III, and IV, concluding that the laws in question were enacted contrary to free exercise principles, and they are void. Pp. 531-540, 542-547.
(a) Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872. However, where such a law is not neutral or not of general application, it must undergo the most rigorous of scrutiny: it must be justified by a compelling governmental interest, and must be narrowly tailored to advance that interest. Neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied. Pp. 531-532. (b) The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice. That this religious exercise has been targeted is evidenced by Resolution 87-66's statements of "concern" and "commitment," and by the use of the words "sacrifice" and "ritual" in Ordinances 87-40, 87-52, and 87-71. Moreover, the latter ordinances' various
(c) Each of the ordinances pursues the city's governmental interests only against conduct motivated by religious belief, and thereby violates the requirement that laws burdening religious practice must be of general applicability
(d) The ordinances cannot withstand the strict scrutiny that is required upon their failure to meet the Smith standard. They are not narrowly tailored to accomplish the asserted governmental interests. All four are overbroad or underinclusive in substantial respects because the proffered objectives are not pursued with respect to analogous nonreligious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. Moreover, where, as here, 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 governmental interests given in justification of the restriction cannot be regarded as compelling. Pp. 546-547. JUSTICE KENNEDY delivered the opinion of the Court, except as to Part II-A-2.Fn
The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions. Cf. McDaniel v. Paty, 435 U.S. 618 (1978); Fowler v. Rhode Island, 345 U.S. 67 (1953). Concerned that [this [fundamental nonpersecution principle] of the First Amendment was implicated here,] however, we granted certiorari. 503 U.S. 935 (1992). [508 U.S. 520, 524]
Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation's essential commitment to religious freedom. The challenged laws had an impermissible object; and in all events, the principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs. We invalidate the challenged enactments, and reverse the judgment of the Court of Appeals.
"[t]he City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety." Next, the council approved an emergency ordinance, Ordinance 87-40, which incorporated in full, except as to penalty, Florida's animal cruelty laws. Fla.Stat. ch. 828 (1987).
that the city council has determined that the sacrificing of animals within the city limits is contrary to the public health, safety, welfare and morals of the community," the city council adopted Ordinance 87-71. That ordinance defined sacrifice as had Ordinance 87-52, and then provided that "[i]t shall be unlawful for
Following enactment of these ordinances, the Church and Pichardo filed this action pursuant to 42 U.S.C. 1983 in the United States District Court for the Southern District of Florida. Named as defendants were the city of Hialeah and its mayor and members of its city council in their individual capacities. Alleging violations of petitioners' rights under, inter alia, the Free Exercise Clause, the complaint sought a declaratory judgment and injunctive and monetary relief. The District Court granted summary judgment to the individual defendants, finding that they had absolute immunity for their legislative acts and that the ordinances and resolutions adopted by the council did not constitute an official policy of harassment, as alleged by petitioners. 688 F.Supp. 1522 (SD Fla. 1988).
After a 9-day bench trial on the remaining claims, the District Court ruled for the city, finding no violation of [508 U.S. 520, 529] petitioners' rights under the Free Exercise Clause. 723 F.Supp. 1467 (SD Fla. 1989). (The court rejected as well petitioners' other claims, which are not at issue here.) Although acknowledging that "the ordinances are not religiously neutral," id., at 1476, and that the city's concern about animal sacrifice was "prompted" by the establishment of the Church in the city, id., at 1479, the District Court concluded that the purpose of the ordinances was not to exclude the Church from the city, but to end the practice of animal sacrifice, for whatever reason practiced, id., at 1479, 1483. The court also found that the ordinances did not target religious conduct "on their face," though it noted that, in any event, "specifically regulating [religious] conduct" does not violate the First Amendment "when [the conduct] is deemed inconsistent with public health and welfare." Id., at 1483-1484. Thus, the court concluded that, at most, the ordinances' effect on petitioners' religious conduct was "incidental to [their] secular purpose and effect." Id., at 1484.
The District Court proceeded to determine whether the governmental interests underlying the ordinances were compelling and, if so, to balance the "governmental and religious interests." The court noted that "[t]his "balance depends upon the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity." Ibid., quoting Grosz v. City of Miami Beach, 721 F.2d 729, 734 (CA 11 1983), cert. denied, 469 U.S. 827 (1984). The court found four compelling interests. First, the court found that animal sacrifices present a substantial health risk, both to participants and the general public. According to the court, animals that are to be sacrificed are often kept in unsanitary conditions and are uninspected, and animal remains are found in public places. 723 F.Supp., at 1474-1475, 1485. Second, the court found emotional injury to children who witness the sacrifice of animals. Id., at 1475-1476, 1485-1486. Third, the court found compelling [508 U.S. 520, 530] the city's interest in protecting animals from cruel and unnecessary killing. The court determined that the method of killing used in Santeria sacrifice was "unreliable and not humane, and that the animals, before being sacrificed, are often kept in conditions that produce a great deal of fear and stress in the animal." Id., at 1472-1473, 1486. Fourth, the District Court found compelling the city's interest in restricting the
Balancing the competing governmental and religious interests, the District Court concluded the compelling governmental interests "fully justify the absolute prohibition on ritual sacrifice" accomplished by the ordinances. Id., at 1487. The court also concluded that an exception to the sacrifice prohibition for religious conduct would "`unduly interfere with fulfillment of the governmental interest'" because any more narrow restrictions - e.g., regulation of disposal of animal carcasses - would be unenforceable as a result of the secret nature of the Santeria religion. Id., at 1486-1487, and nn. 57-59. A religious exemption from the city's ordinances, concluded the court, would defeat the city's compelling interests in enforcing the prohibition. Id., at 1487.
The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam opinion. Judgt. order reported at 936 F.2d 586 (1991). Choosing not to rely on the District Court's recitation of a compelling interest in promoting the welfare of children, the Court of Appeals stated simply that it concluded the ordinances were consistent with the Constitution. App. to Pet. for Cert. A2. It declined to address the effect of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), decided after the District Court's opinion, because the District Court "employed an arguably stricter standard" than that applied in Smith. App. to Pet. for Cert. A2, n. 1. [508 U.S. 520, 531]
The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." (Emphasis added.) The city does not argue that Santeria is not a "religion" within the meaning of the First Amendment. Nor could it. 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). Given the historical association between animal sacrifice and religious worship, see supra, at 2, petitioners' assertion that animal sacrifice is an integral part of their religion "cannot be deemed bizarre or incredible." Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829, 834, n. 2 (1989). Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners' professed desire to conduct animal sacrifices for religious reasons. We must consider petitioners' First Amendment claim.
In addressing the constitutional protection for free exercise of religion,
our cases establish the general proposition that [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 practice.] Employment Div., Dept. of Human Resources of Ore.
v. Smith, supra. 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. A law failing
to satisfy these requirements must be justified by a compelling governmental
interest, and must be narrowly tailored to [508 U.S. 520, 532] advance
that interest. These ordinances [fail to satisfy the Smith requirements.]
We begin by discussing neutrality. A
In our Establishment Clause cases, we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general. See, e.g., Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 248 (1990) (plurality opinion); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 389 (1985); Wallace v. Jaffree, 472 U.S. 38, 56 (1985); Epperson v. Arkansas, 393 U.S. 97, 106-107 (1968); School Dist. of Abington v. Schempp, 374 U.S. 203, 225 (1963); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16 (1947). These cases, however, for the most part, have addressed governmental efforts to benefit religion or particular religions, and so have dealt with a question different, at least in its formulation and emphasis, from the issue here. Petitioners allege an attempt to disfavor their religion because of the religious ceremonies it commands, and the Free Exercise Clause is dispositive in our analysis.
[At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.] See, e.g., Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (plurality opinion); Fowler v. Rhode Island, 345 U.S. 67, 69-70 (1953). Indeed, it was ["historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause."] Bowen v. Roy, 476 U.S. 693, 703 (1986) (opinion of Burger, C.J.). See J. Story, Commentaries on the Constitution of the United States 991-992 (abridged ed. 1833) (reprint 1987); T. Cooley, Constitutional Limitations 467 (1868) (reprint 1972); McGowan v. Maryland, 366 U.S. 420, 464, and n. 2 (1961) (opinion of Frankfurter, J.); Douglas v. Jeannette, 319 U.S. 157, 179 (1943) (Jackson, J., concurring in result); [508 U.S. 520, 533] Davis v. Beason, 133 U.S. 333, 342 (1890). These principles, though not often at issue in our Free Exercise Clause cases, have played a role in some. In McDaniel v. Paty, 435 U.S. 618 (1978), for example, we invalidated a state law that disqualified members of the clergy from holding certain public offices, because it "impose[d] special disabilities on the basis of . . . religious status," Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S., at 877. On the same principle, in 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).
Although a law targeting religious beliefs as such is never permissible, McDaniel v. Paty, supra, at 626 (plurality opinion); Cantwell v. Connecticut, supra, at 303-304, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, see Employment Div., Dept. of Human Resources of Oregon v. Smith, supra, at 878-879, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. 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 discernable from the language or context. Petitioners contend that three of the ordinances fail this test of facial neutrality because they use the words [508 U.S. 520, 534] "sacrifice" and "ritual," words with strong religious connotations. Brief for Petitioners 16-17. We agree that these words are consistent with the claim of facial discrimination, but the argument is not conclusive. The words "sacrifice" and "ritual" have a religious origin, but current use admits also of secular meanings. See Webster's Third New International Dictionary 1961, 1996 (1971). See also 12 Encyclopedia of Religion, at 556 ("[T]he word sacrifice ultimately became very much a secular term in common usage"). The ordinances, furthermore, define "sacrifice" in secular terms, without referring to religious practices.
We reject the contention advanced by the city, see Brief for Respondent 15, that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause "forbids subtle departures from neutrality," Gillette v. United States, 401 U.S. 437, 452 (1971), and "covert suppression of particular religious beliefs," Bowen v. Roy, supra, at 703 (opinion of Burger, C.J.). Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt. "The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders." Walz v. Tax Comm'n of New York City, 397 U.S. 664, 696 (1970) (Harlan, J., concurring).
The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances
.. [508 U.S. 520, 535] Resolution 87-66, adopted June 9, 1987, recited that "residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety," and "reiterate[d]" the city's commitment to prohibit "any and all [such] acts of any and all religious groups." No one suggests, and, on this record, it cannot be maintained, that city officials had in mind a religion other than Santeria.
Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S., at 884. As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government "may not refuse to extend that system to cases of `religious hardship' without compelling reason." ibid. quoting Bowen v. Roy, 476 U.S., at 708 (opinion of Burger, C.J.). Respondent's application of the ordinance's test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonreligious [508 U.S. 520, 538] reasons. Thus, religious practice is being singled out for discriminatory treatment. Bowen v. Roy, 476 U.S., at 722, and n. 17 (STEVENS, J., concurring in part and concurring in result), id., at 708 (opinion of Burger, C.J.); United States v. Lee, 455 U.S. 252, 264, n. 3 (1982) (STEVENS, J., concurring in judgment). achieve their stated ends. It is not unreasonable to infer, at least when there are no persuasive indications to the contrary, that a law which visits "gratuitous restrictions" on religious conduct, McGowan v. Maryland, 366 U.S., at 520 (opinion of Frankfurter, J.), seeks not to effectuate the stated governmental interests, but to suppress the conduct because of its religious motivation.
The [legitimate governmental 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.]* If improper disposal, not the sacrifice itself, is the harm to be prevented, the city could have imposed a general regulation on the disposal of organic garbage. It did not do so. Indeed, counsel for the city conceded at oral argument that, under the ordinances, Santeria sacrifices would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses. Tr. of Oral Arg. 45. See also id., at 42, 48. Thus, these broad ordinances prohibit Santeria sacrifice even when it does not threaten the city's [508 U.S. 520, 539] interest in the public health. The District Court accepted the argument that narrower regulation would be unenforceable because of the secrecy in the Santeria rituals and the lack of any central religious authority to require compliance with secular disposal regulations. See 723 F.Supp., at 1486-1487, and nn. 58-59. It is difficult to understand, however, how a prohibition of the sacrifices themselves, which occur in private, is enforceable if
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 [508 U.S. 520, 543] the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.
The principle that government, in pursuit of legitimate interests, cannot in a [selective manner impose burdens only on conduct motivated by religious belief] is essential to the protection of the rights guaranteed by the Free Exercise Clause. The principle underlying the general applicability requirement has parallels in our First Amendment jurisprudence. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 66 669-670; (1991); University of Pennsylvania v. EEOC, 493 U.S. 182, 201 (1990); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983); Larson v. Valente, 456 U.S., at 245-246; Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969). In this case, we [need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.]
[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. A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases. It follows from what we have already said that these ordinances cannot withstand this scrutiny.
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). See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 119-120 (1991). Cf. Florida Star v. B.J.F., supra, at 540-541; Smith v. Daily Mail Publishing Co., 443 U.S. 97, 104-105 (1979); id., at 110 (REHNQUIST, J., concurring in judgment). As we show above, see supra, at 543-546, the ordinances are
The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.
Fn [508 U.S. 520, 523] THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join all but Part II-A-2 of this opinion. JUSTICE WHITE joins all but Part II-A of this opinion. JUSTICE SOUTER joins only Parts 1, III, and IV of this opinion. [508 U.S. 520, 548] APPENDIX TO OPINION OF THE COURT
City of Hialeah, Florida, Resolution No. 87-66, adopted June 9, 1987, provides: "WHEREAS, residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety, and
In considering, for example, whether Hialeah's animal sacrifice laws violate free exercise neutrality, the Court rightly observes that, "[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons," ibid., and correctly finds Hialeah's laws to fail those standards. The question whether the protections of the Free Exercise Clause also pertain if the law at issue, though nondiscriminatory in its object, has the effect nonetheless of
Smith presents itself, we may consider recent scholarship raising serious questions about the Smith rule's consonance with the original understanding and purpose of the Free Exercise Clause. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, supra; Durham, Religious Liberty and the Call of Conscience, 42 DePaul L.Rev. 71, 79-85 (1992); see also Office of Legal Policy, U.S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 38-42 (1986) (predating Smith). There appears to be a strong argument [508 U.S. 520, 576] from the Clause's development in the First Congress, from its origins in the post-Revolution state constitutions and pre-Revolution colonial charters, and from the philosophy of rights to which the Framers adhered, that the Clause was originally understood to preserve a right to engage in activities necessary to fulfill one's duty to one's God, unless those activities threatened the rights of others or the serious needs of the State. If, as this scholarship suggests, the Free Exercise Clause's original "purpose [was] to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority," School Dist. of Abington v. Schempp, 374 U.S., at 223, then there would be powerful reason to interpret the Clause to accord with its natural reading, as applying to all laws prohibiting religious exercise in fact, not just those aimed at its prohibition, and to hold the neutrality needed to implement such a purpose to be the substantive neutrality of our pre-Smith cases, not the formal neutrality sufficient for constitutionality under Smith.8 [508 U.S. 520, 577]
The scholarship on the original understanding of the Free Exercise Clause is, to be sure, not uniform. See, e.g., Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo.Wash.L.Rev. 915 (1992); Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L.Rev. 245 (1991). And there are differences of opinion as to the weight appropriately accorded original meaning. But whether or not one considers the original designs of the Clause binding, the interpretive significance of those designs surely ranks in the hierarchy of issues to be explored in resolving the tension inherent in free exercise law as it stands today.
The extent to which the Free Exercise Clause requires government to refrain from impeding religious exercise defines nothing less than the respective relationships in our constitutional democracy of the individual to government and to God. "Neutral, generally applicable" laws, drafted as they are from the perspective of the nonadherent, have the unavoidable potential of putting the believer to a choice between God and government. Our cases now present competing answers to the question when government, while pursuing secular ends, may compel disobedience to what one believes religion commands. The case before us is rightly decided without resolving the existing tension, which remains for another day when it may be squarely faced.
[Footnote 1] A law that is not generally applicable according to the Court's definition (one that "selective[ly] impose[s] burdens only on conduct motivated by religious belief," ante, at 21) would, it seems to me, fail almost any test for neutrality. Accordingly, the cases stating that the Free Exercise [508 U.S. 520, 561] Clause requires neutrality are also fairly read for the proposition that the Clause requires general applicability.
[Footnote 2] Our cases make clear, to look at this from a different perspective, that an exemption for sacramental wine use would not deprive Prohibition of neutrality. Rather, "[s]uch an accommodation [would] `reflec[t] nothing more than the governmental obligation of neutrality in the face of religious differences.'" Wisconsin v. Yoder, 406 U.S. 205, 235, n. 22 (1972) (quoting Sherbert v. Verner, 374 U.S. 398, 409 (1963)); see also Lee v. Weisman, 505 U.S. 577, 627 (1992) (SOUTER, J., concurring). The prohibition law in place earlier this century did, in fact, exempt "wine for sacramental purposes." National Prohibition Act, Title 11, 3, 41 Stat. 308.
[Footnote 3] One might further distinguish between formal neutrality and facial neutrality. While facial neutrality would permit discovery of a law's object or purpose only by analysis of the law's words, structure, and operation, formal neutrality would permit enquiry also into the intentions of those who enacted the law. Compare ante, at 540-542 (opinion of KENNEDY, J., joined by STEVENS J.) with ante, p. 557
U.S. Supreme Court
THOMAS v. REVIEW BD., IND. EMPL. SEC. DIV., 450 U.S. 707 (1981) 450 U.S. 707
THOMAS v. REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION ET AL.
CERTIORARI TO THE SUPREME COURT OF INDIANA. No. 79-952.
Argued October 7, 1980.
Decided April 6, 1981.
489 U.S. 829
FRAZEE v. ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY ET AL. APPEAL FROM THE APPELLATE COURT OF ILLINOIS, THIRD DISTRICT No. 87-1945.
U.S. Supreme Court
CITY OF BOERNE v. FLORES, ARCHBISHOP OF SAN ANTONIO, et al. certiorari to the united states court of appeals for the fifth circuit No. 95-2074.
Argued February 19, 1997
Decided June 25, 1997 Decided March 29, 1989
U.S. Supreme Court
LYNG v. NORTHWEST INDIAN CEMETERY PROT. ASSN., 485 U.S. 439 (1988) 485 U.S. 439
LYNG, SECRETARY OF AGRICULTURE, ET AL. v. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 86-1013.
Argued November 30, 1987
Decided April 19, 1988
Supreme Court of the United States
October Term, 1995
Reverend Paul Schenck, et al.,
Pro-Choice Network of Western New York, et al., Respondents.
Most fundamentally, petitioners' First Amendment right to demonstrate on the public streets is beyond dispute. That right has been recognized at least since Hague v. CIO, 307 U.S. 496, and is integral to our notions of democratic self-government.
The right to protest on the public streets, moreover, cannot be limited or abridged because of the content of petitioners' message. Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972); Carey v. Brown, 447 U.S. 455 (1980). In addition, petitioners have the right to convey their message to its intended audience, see, e.g., Edwards v. South Carolina, 372 U.S. 229 (1963), which in this case consists of clinic patients and staff.
Speech does not lose its First Amendment protection in a public forum because it is vituperative, Terminiello v. Chicago, 337 U.S. 1 (1949), or because it would be regarded as "offensive" by some, Texas v. Johnson, 491 U.S. 397 (1989), or because it seeks to "persuade to action, not merely to describe facts," Thomas v. Collins, 323 U.S. 516, 537 (1945). To the extent that Judge Winter's opinion below can be read to suggest that First Amendment speech should be judged by its effect on the "timid," Schenck, 67 F.3d at 396, we disagree. This Court has properly rejected broad restrictions on speech premised on the reaction of the most vulnerable audience. Cf. Butler v. Michigan, 352 U.S. 380 (1957).
On the other hand, the fact that one is engaged in expressive activity does not immunize otherwise unlawful activity. Wisconsin v. Mitchell, 113 S.Ct. 2194. Such unlawful activity may be enjoined. Still, any injunction limiting expressive activity raises serious First Amendment concerns, Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175 (1968), even if the restraint is content-neutral and the limitation on speech is incidental.
The question of how extensive the record of unlawful activity must be to justify an injunction inevitably depends on the seriousness of the unlawful activity and the scope of the injunction. Isolated, unlawful acts do not justify a broad injunction against speech, NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).13 But this case involves neither isolated unlawful acts nor a broad injunction against speech. Rather, the challenged order was designed to protect ingress and egress from abortion clinics that had been repeatedly
This Court has emphasized that injunctions directed at the content of expression bear a "heavy presumption of invalidity," Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), and can only be sustained in the most "exceptional cases," Near v. Minnesota, 283 U.S. 697 (1931). In this case, however, the injunction is not directed at the content of petitioners' expression but at their obstructive behavior.
17 By contrast, the ordinance at issue in Sabelko v. City of Phoenix, 68 F.3d 1169, contains a "cease and desist" provision that applies to all persons engaged in "demonstration activity," regardless of whether they have engaged in prior unlawful conduct, but does not apply to anyone else. Id. at 1170 n.1. Thus, it is not a general harassment statute but, instead, an ordinance targeted specifically at protestors. Such selectivity in an ordinance raises serious issues of content discrimination under Boos v. Barry, 485 U.S. 312 (1988).
This Court has long recognized that there is no authority to silence a speaker merely because the expression may be distasteful to an unwilling listener or observer. Cohen v. California, 403 U.S. at 21; Erznoznik v. City of Jacksonville, 422 U.S. 205, 210 (1975). In Cohen, Justice Harlan carefully explored this issue and the competing societal concerns:
Free Speech cases:
CAPITOL SQUARE REVIEW AND ADVISORY BOARD et al. v. PINETTE et al. SCHENCK et al. v. PRO CHOICE NETWORK OF WESTERN NEW YORK et al. BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS v. UMBEHR
ROSENBERGER et al. v. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA et al. DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., et al. v. FEDERAL COMMUNICATIONS COMMISSION et al. CITY OF LADUE et al. v. GILLEO
GENTILE v. STATE BAR OF NEVADA
MADSEN et al. v. WOMEN'S HEALTH CENTER, INC., et al. **58RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL LAMB'S CHAPEL et al. v. CENTER MORICHES UNION FREE SCHOOL DISTRICT et al.et al. v. FERRIS FACULTYASSOCIATION et al. TURNER BROADCASTING SYSTEM, INC., et al. v. FEDERAL COMMUNICATIONS COMMISSION et al. GLICKMAN, SECRETARY OF AGRICULTURE v. WILEMAN BROTHERS & ELLIOTT, INC., et al. TURNER BROADCASTING SYSTEM, INC., et al. v. FEDERAL COMMUNICATIONS COMMISSION et al. CITY OF CINCINNATI v. DISCOVERY NETWORK, INC., et al. EDENFIELD et al. v. FANE
HURLEY et al. v. IRISH AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON et al. ALEXANDER v. UNITED STATES
McINTYRE, executor of ESTATE OF McINTYRE, DECEASED v. OHIO ELECTIONS COMMISSION BARNES, PROSECUTING ATTORNEY OF ST. JOSEPH COUNTY, INDIANA, et al. v. GLEN THEATRE,INC., et al. WISCONSIN v. MITCHELL
FORSYTH COUNTY, GEORGIA v. NATIONALIST MOVEMENT O'HARE TRUCK SERVICE, INC., et al. v. CITY OF NORTHLAKE et al. ARIZONANS FOR OFFICIAL ENGLISH et al. v. ARIZONA et al. LEATHERS, COMMISSIONER OF REVENUES OFARKANSAS v. MEDLOCK et al. WISCONSIN DEPARTMENT OF REVENUE v. **
*****note: District court
HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) , 5] purpose entitling the Parade to protection under the First Amendment." Id., at B25. It concluded that the parade is "not an exercise of [the Council's] constitutionally protected right of expressive association," but instead "an open recreational event that is subject to the public accommodations law." Id., at B27.
accommodations law to the parade violated their freedom of speech (as distinguished from their right to expressive association, raised in the trial court), the court's majority held that it need not decide on the particular First Amendment theory involved "because, as the [trial] judge found, it is `impossible to discern any specific expressive purpose entitling the parade to protection under the First Amendment.'" Id., at 249, 636 N. E. 2d, at 1299 (footnote omitted). The defendants had thus failed at the trial level "to demonstrate that the parade truly was an exercise of . . . First Amendment rights," id., at 250, 636 N. E. 2d, at 1299, citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, n. 5 (1984), and on appeal nothing indicated to the majority of the Supreme Judicial Court that the trial judge's assessment of the evidence on this point was clearly erroneous, ibid. The court rejected petitioners' further challenge to the law as overbroad, holding that it does not, on its face, regulate speech, does not let public officials examine the content of speech, and would not be interpreted as reaching speech. Id., at 251-252, 636 N. E. 2d, at 1300. Finally, the court rejected the challenge that the public accommodations law was unconstitutionally vague, holding that this case did not present an issue of speech and that the law gave persons of ordinary intelligence a reasonable opportunity to know what was prohibited. Id., at 252, 636 N. E. 2d, at 1300-1301.
There is no corresponding concession from the other side, however, and certainly not to the state courts' [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) , 9] characterization of the parade as lacking the element of expression for purposes of the First Amendment. Accordingly, our review of petitioners' claim that their activity is indeed in the nature of protected speech carries with it a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984). The "requirement of independent appellate review . . . is a rule of federal constitutional law," id., at 510, which does not limit our deference to a trial court on matters of witness credibility, Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989), but which generally requires us to "review the finding of facts by a State court . .. . where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts," Fiske v. Kansas, 274 U.S. 380, 385-386 (1927). See also Niemotko v. Maryland, 340 U.S. 268, 271 (1951); Jacobellis v. Ohio, 378 U.S. 184, 189 (1964) (opinion of Brennan, J.). This obligation rests upon us simply because the reaches of the First Amendment are ultimately defined by the facts it is held to embrace, and we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the line of constitutional protection. See Bose Corp., supra, at 503. Even where a speech case has originally been tried in a federal court, subject to the provision of Federal Rule of Civil Procedure 52(a) that "[f]indings of fact . . . shall not be set aside unless clearly erroneous," we are obliged to make a fresh examination of crucial facts. Hence, in this case, though we are confronted with the state courts' conclusion that the factual characteristics of petitioners' activity place it within the vast realm of non-expressive conduct, our obligation is to "`make an independent examination of the whole record,' . . . so as [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) , 10] to assure ourselves that th[is] judgment does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (footnote omitted), quoting Edwards v. South Carolina, 372 U.S. 229, 235 (1963).
). Hence, we use the word "parade" to indicate marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Indeed a parade's dependence on watchers is so extreme that nowadays, as with Bishop Berkeley's celebrated tree, "if a parade or demonstration receives no media coverage, it may as well not have happened." Id., at 171. Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches. In Gregory v. Chicago, 394 U.S. 111, 112 (1969), for example, petitioners had taken part in a procession to express their grievances to the city government, and we held that such a "march, if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment." Similarly, in Edwards v. South Carolina, 372 U.S. 229, 235 (1963), where petitioners had joined in a march of protest and pride, carrying placards and singing The [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) , 11] Star Spangled Banner, we held that the activities "reflect an exercise of these basic constitutional rights in their most pristine and classic form." Accord, Shuttlesworth v. Birmingham, 394 U.S. 147, 152 (1969).
The protected expression that inheres in a parade is not limited to its banners and songs, however, for the Constitution looks beyond written or spoken words as mediums of expression. Noting that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632 (1943), our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), id., at 632, 642, wearing an arm band to protest a war, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505-506 (1969), displaying a red flag, Stromberg v. California, 283 U.S. 359, 369 (1931), and even "[m]arching, walking or parading" in uniforms displaying the swastika, National Socialist Party of America v. Skokie, 432 U.S. 43 (1977). As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," cf. Spence v. Washington, 418 U.S. 405, 411 (1974) (per curiam), would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll.
Not many marches, then, are beyond the realm of expressive parades, and the South Boston celebration is not one of them. Spectators line the streets; people march in costumes and uniforms, carrying flags and banners with all sorts of messages (e.g., "England get out of Ireland," "Say no to drugs"); marching bands and pipers play, floats are pulled along, and the whole show is broadcast over Boston television. See Record, Exh. 84 (video). To be sure, we agree with the state courts that in spite of excluding some applicants, the Council is [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) , 12] rather lenient in admitting participants. But a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech. Nor, under our precedent, does First Amendment protection require a speaker to generate, as an original matter, each item
public accommodations statutes across the Nation, the legislature continued to broaden the scope of legislation, to the point that the law today prohibits discrimination on the basis of "race, color, religious creed, national origin, sex, sexual orientation . . ., deafness, blindness or any physical or mental disability or ancestry" in "the admission of any person to, or treatment in any place of public accommodation, resort or amusement." Mass. Gen. Laws 272:98. Provisions like these are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments. See, e.g., New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 11-16 (1988); Roberts v. United States Jaycees, 468 U.S. 609, 624-626 (1984); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-262 (1964). Nor is this statute unusual in any obvious way, since it does not, on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds.
understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.
"Since all speech inherently involves choices of what to say and what to leave unsaid," Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 11 (1986) (plurality opinion) (emphasis in original), one important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say," id., at 16. Although the State may at times "prescribe what shall be orthodox in commercial [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) , 16] advertising" by requiring the dissemination of "purely factual and uncontroversial information," Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985); see Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 386-387 (1973), outside that context it may not compel affirmance of a belief with which the speaker disagrees, see Barnette, 319 U.S., at 642. Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid, McIntyre v. Ohio Elections Comm'n, 514 U.S. ___, ___ (1995) (slip op., at 6-7); Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 797-798 (1988), subject, perhaps, to the permissive law of defamation, New York Times, 376 U.S. 254; Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-349 (1974); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Nor is the rule's benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone's eyes are misguided, or even hurtful. See Brandenburg v. Ohio, 395 U.S. 444 (1969); Terminiello v. Chicago, 337 U.S. 1 (1949).
acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control.
to appear to agree with [the intruding leaflet] or to respond." 475 U.S., at 15 (plurality) (citation omitted). The plurality made the further point that if "the government [were] freely able to compel . . . speakers to propound political messages with which they disagree, . . . protection [of a speaker's freedom] would be empty, for the government could require speakers to affirm in one breath that which they deny in the next." Id., at 16. Thus, when dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's right to autonomy over the message is compromised.
The government's interest in Turner Broadcasting was not the alteration of speech, but the survival of speakers. In thus identifying an interest going beyond abridgment of speech itself, the defenders of the law at issue in Turner Broadcasting addressed the threshold requirement of any review under the Speech Clause, whatever the ultimate level of scrutiny, that a challenged restriction on speech serve a compelling, or at least important, governmental object, see, e.g., Pacific Gas & Electric, supra, at 19; Turner Broadcasting, supra, at ___ (slip op., at 38); United States v. O'Brien, 391 U.S. 367, 377 (1968).
for correction. But if this indeed is the point of applying the state law to expressive conduct, it is a decidedly fatal objective. Having availed itself of the public thoroughfares "for purposes of assembly [and] communicating thoughts between citizens," the Council is engaged in a use of the streets that has "from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.). Our tradition of free speech [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) , 22] commands that a speaker who takes to the street corner to express his views in this way should be free from interference by the State based on the content of what he says. See, e.g., Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972); cf. H. Kalven, Jr., A Worthy Tradition 6-19 (1988); O. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1408-1409 (1986). The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis. See, e.g., Barnette, 319 U.S., at 642; Pacific Gas & Electric, 475 U.S., at 20. While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.
Our holding today rests not on any particular view about the Council's message but on the Nation's commitment to protect freedom of speech. Disapproval of a private speaker's statement does not legitimize use of [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) , 24] the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others. Accordingly, the judgment of the Supreme Judicial Court is reversed and the case remanded for proceedings not inconsistent with this opinion. It is so ordered.
The State's denial of unemployment compensation benefits to petitioner violated his First Amendment right to free exercise of religion under Sherbert v. Verner, 374 U.S. 398. Pp. 713-720.
(a) The Indiana Supreme Court improperly relied on the facts that petitioner was "struggling" with his beliefs and that he was not able [450 U.S. 707, 708] to "articulate" his belief precisely. Courts should not undertake to dissect religious beliefs on such grounds. The Indiana court also erred in apparently giving significant weight to the fact that another Jehovah's Witness with whom petitioner consulted had no scruples about working on tank turrets. The guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because such work was forbidden by his religion. The record shows that petitioner terminated his employment for religious reasons. Pp. 713-716.
(b) A person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program. It is true that the Indiana law does not compel a violation of conscience, but where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise
489 U.S. 829
FRAZEE v. ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY ET AL. APPEAL FROM THE APPELLATE COURT OF ILLINOIS, THIRD DISTRICT No. 87-1945.
Argued March 1, 1989
Decided March 29, 1989
"When a refusal of work is based on religious convictions, the refusal must be based upon some tenets or dogma accepted by the individual of some church, sect, or denomination, and such a refusal based solely on an individual's personal belief is personal and noncompelling and does not render the work unsuitable." [489 U.S. 829, 831] App. 18-19. The Board of Review concluded that Frazee had refused an offer of suitable work without good cause. The Circuit Court of the Tenth Judicial Circuit of Illinois, Peoria County, affirmed, finding that the agency's decision was "not contrary to law nor against the manifest weight of the evidence," thereby rejecting Frazee's claim based on the Free Exercise Clause of the First Amendment. Id., at 23.
Frazee's free exercise claim was again rejected by the Appellate Court of Illinois, Third District. 159 Ill. App. 3d 474, 512 N. E. 2d 789 (1987). The court characterized Frazee's refusal to work as resting on his "personal professed religious belief," and made it clear that it did "not question the sincerity of the plaintiff," id., at 475, 477, 512 N. E. 2d, at 790, 791. It then engaged in a historical discussion of religious prohibitions against work on the Sabbath and, in particular, on Sunday. Nonetheless, the court distinguished Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981); and Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987), from the facts of Frazee's case. Unlike the claimants in Sherbert, Thomas, and Hobbie, Frazee was not a member of an established religious sect or church, nor did he claim that his refusal to work resulted from a "tenet, belief or teaching of an established religious body." 159 Ill. App. 3d, at 477, 512 N. E. 2d, at 791. To the Illinois court, Frazee's position that he was "a Christian" and as such felt it wrong to work on Sunday was not enough. For a Free Exercise Clause claim to succeed, said the Illinois Appellate Court, "the injunction against Sunday labor must be found in a tenet or dogma of an established religious sect. [Frazee] does not profess to be a member of any such sect." Id., at 478-479, 512 N. E. 2d, at 792. The Illinois Supreme Court denied Frazee leave to appeal.
It is true, as the Illinois court noted, that each of the claimants in those cases was a member of a particular religious sect, but none of those decisions turned on that consideration or on any tenet of the sect involved that forbade the work the [489 U.S. 829, 833] claimant refused to perform. Our judgments in those cases rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question. Never did we suggest that unless a claimant belongs to a sect that forbids what his job requires, his belief, however sincere, must be deemed a purely personal preference rather than a religious belief. Indeed, in Thomas, there was disagreement among sect members as to whether their religion made it sinful to work in an armaments factory; but we considered this to be an irrelevant issue and hence rejected the State's submission that unless the religion involved formally forbade work on armaments, Thomas' belief did not qualify as a religious belief. Because Thomas unquestionably had a sincere belief that his religion prevented him from doing such work, he was entitled to invoke the protection of the Free Exercise Clause.
There is no doubt that "[o]nly beliefs rooted in religion are protected by the Free Exercise Clause," Thomas, supra, at 713. Purely secular views do not suffice. United States v. Seeger, 380 U.S. 163 (1965); Wisconsin v. Yoder, 406 U.S. 205, 215-216 (1972). Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held. States are clearly entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause. We do not face problems about sincerity or about the religious nature of Frazee's convictions, however. The courts below did not question his sincerity, and the State concedes it. Tr. of Oral Arg. 35. Furthermore, the Board of Review characterized Frazee's views as "religious convictions," App. 18, and the Illinois Appellate Court referred to his refusal to work on Sunday as based on a "personal professed religious belief," 159 Ill. App. 3d, at 475, 512 N. E. 2d, at 790.1 [489 U.S. 829, 834]
Frazee asserted that he was a Christian, but did not claim to be a member of a particular Christian sect. It is also true that there are assorted Christian denominations that do not profess to be compelled by their religion to refuse Sunday work, but this does not diminish Frazee's protection flowing from the Free Exercise Clause. Thomas settled that much. Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization. Here, Frazee's refusal was based on a sincerely held religious belief. Under our cases, he was entitled to invoke First Amendment protection.2
The State does not appear to defend this aspect of the decision below. In its brief and at oral argument, the State conceded that the Free Exercise Clause does not demand adherence to a tenet or dogma of an established religious sect. Instead, the State proposes its own test for identifying a "religious" belief, asserts that Frazee has not met such a test, and asks that we affirm on this basis. We decline to address this submission; for as the case comes to us, Frazee's conviction was recognized as religious but found to be inadequate [489 U.S. 829, 835] because it was not claimed to represent a tenet of a religious organization of which he was a member. That ground for decision was clearly erroneous.
The State offers no justification for the burden that the denial of benefits places on Frazee's right to exercise his religion. The Illinois Appellate Court ascribed great significance to America's weekend way of life. The Illinois court asked: "What would Sunday be today if professional football, baseball, basketball, and tennis were barred. Today Sunday is not only a day for religion, but for recreation and labor. Today the supermarkets are open, service stations dispense fuel, utilities continue to serve the people and factories continue to belch smoke and tangible products," concluding that "[i]f all Americans were to abstain from working on Sunday, chaos would result." 159 Ill. App. 3d, at 478, 512 N. E. 2d, at 792. We are unpersuaded, however, that there will be a mass movement away from Sunday employ if William Frazee succeeds in his claim.
As was the case in Thomas where there was "no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create `widespread unemployment,' or even to seriously affect unemployment," 450 U.S., at 719, there is nothing before us in this case to suggest that Sunday shopping, or Sunday sporting, for that matter, will grind to a halt as a result of our decision today. And, as we have said in the past, there may exist state interests sufficiently compelling to override a legitimate claim to the free exercise of religion. No such interest has been presented here.
[Footnote 2] We noted in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715 (1981), that an asserted belief might be "so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause." But that avails the State nothing in this case. As the discussion of the Illinois Appellate Court itself indicates, claims by Christians that their religion forbids Sunday work cannot be deemed bizarre or incredible. [489 U.S. 829, 836]
U.S. Supreme Court
CITY OF BOERNE v. FLORES, ARCHBISHOP OF SAN ANTONIO, et al. certiorari to the united states court of appeals for the fifth circuit No. 95-2074.
Argued February 19, 1997
Decided June 25, 1997
EMPLOYMENT DIV., ORE. DEPT. OF HUMAN RES. v. SMITH, 494 U.S. 872 (1990)
494 U.S. 872
EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON, ET AL. v. SMITH ET AL.
CERTIORARI TO THE SUPREME COURT OF OREGON No. 88-1213.
Argued November 6, 1989
Decided April 17, 1990
(b) A person may not be compelled to choose between the exercise of
a First Amendment right and participation in an otherwise available public
program. It is true that the Indiana law does not compel a violation of
conscience, but where the state conditions receipt of an important benefit
upon conduct proscribed by a religious faith, or where it denies such a
benefit because of conduct mandated by religious belief, thereby putting
substantial pressure on an adherent to modify his behavior and to violate
his beliefs, a burden upon religion exists. While the compulsion may be
indirect, the infringement upon free exercise is nonetheless substantial.
Pp. 716-718. II
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 878 (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 884. 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. [494 U.S. 872, 893]
The Free Exercise Clause of the First Amendment commands that "Congress shall make no law . . . prohibiting the free exercise [of religion]." In Cantwell v. Connecticut, 310 U.S. 296 (1940), we held that this prohibition applies to the States by incorporation into the Fourteenth Amendment and that it categorically forbids government regulation of religious beliefs. Id., at 303. As the Court recognizes, however, the "free exercise" of religion often, if not invariably, requires the performance of (or abstention from) certain acts. Ante, at 877; cf. 3 A New English Dictionary on Historical Principles 401-402 (J. Murray ed. 1897) (defining "exercise" to include "[t]he practice and performance of rites and ceremonies, worship, etc.; the right or permission to celebrate the observances (of a religion)" and religious observances such as acts of public and private worship, preaching, and prophesying). "[B]elief and action cannot be neatly confined in logic-tight compartments." Wisconsin v. Yoder, 406 U.S. 205, 220 (1972). Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must be at least presumptively protected by the Free Exercise Clause.
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 878. 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 [494 U.S. 872, 894] religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment concerns.
The Court responds that generally applicable laws are "one large step" removed from laws aimed at specific religious practices. Ibid. The First Amendment, however, does not distinguish between laws that are generally applicable and laws that target particular religious practices. Indeed, few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice. 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. As we have noted in a slightly different context, "`[s]uch a test has no basis in precedent and relegates a serious First Amendment value to the barest level of minimum scrutiny that the Equal Protection Clause already provides.'" Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 141-142 (1987) (quoting Bowen v. Roy, 476 U.S. 693, 727 (1986) (O'CONNOR, J., concurring in part and dissenting in part)).
To say that a person's right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct. Under our established First Amendment jurisprudence, we have recognized that the freedom to act, unlike the freedom to believe, cannot be absolute. See, e. g., Cantwell, supra, at 304; Reynolds v. United States, 98 U.S. 145, 161-167 (1879). Instead, we have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest. See Hernandez v. Commissioner, 490 U.S. 680, 699 [494 U.S. 872, 895] (1989); Hobbie, supra, at 141; United States v. Lee, 455 U.S. 252, 257-258 (1982); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718 (1981); McDaniel v. Paty, 435 U.S. 618, 626-629 (1978) (plurality opinion); Yoder, supra, at 215; Gillette v. United States, 401 U.S. 437, 462 (1971); Sherbert v. Verner, 374 U.S. 398, 403 (1963); see also Bowen v. Roy, supra, at 732 (opinion concurring in part and dissenting in part); West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 639 (1943). 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, at 215. "Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens." Roy, supra, at 728 (opinion concurring in part and dissenting in part).
The Court attempts to support its narrow reading of the Clause by claiming that "[w]e 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." Ante, at 878-879. But as the Court later notes, as it must, in 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, supra, at 304-307; Yoder, 406 U.S., at 214-234. 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 [494 U.S. 872, 896] 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. . . . .
In my view, however, the essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one's own religion or conformity to the religious beliefs of others the price of an equal place in the civil community. As we explained in Thomas:
"Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists." 450 U.S., at 717-718. [494 U.S. 872, 898]
See also Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829, 832 (1989); Hobbie, 480 U.S., at 141. A State that makes criminal an individual's religiously motivated conduct burdens that individual's free exercise of religion in the severest manner possible, for it "results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution." Braunfeld, supra, at 605. I would have thought it beyond argument that such laws implicate free exercise concerns.
"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.
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." Lee, supra, at 259; see also Roy, 476 U.S., at 727 ("[T]he Government must accommodate a legitimate free exercise claim unless pursuing an especially important interest by narrowly tailored means"); Yoder, supra, at 221; Braunfeld, 366 U.S., at 605-607. Although the question is close, I would conclude that uniform application of Oregon's criminal prohibition is "essential to accomplish," Lee, supra, at 257, its
[Footnote 6] Because I conclude that the Guidelines are not narrowly tailored, there is no need to consider whether there are ample alternative channels for communication. I note only that the availability of alternative channels of communication outside a public park does not magically validate a [491 U.S. 781, 808] government restriction on protected speech within it. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) ("`[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place,'" quoting Schneider v. State, 308 U.S. 147, 163 (1939)).