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The Supreme Court on Santería - 14
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Text of the court ruling
Commentary on the text
3[508 U.S. 520, 546]
III
    [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.

     First, even were the governmental interests compelling, the ordinances are not drawn in narrow terms to accomplish those interests. As we have discussed, see supra, at 538-540, 543-546, all four ordinances are overbroad or underinclusive in substantial respects. 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. The absence of narrow tailoring suffices to establish the invalidity of the ordinances. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 232 (1987).

     Respondent has not demonstrated, moreover, that, in the context of these ordinances, its governmental interests are compelling. Where government restricts only conduct protected by the First Amendment and fails to enact feasible [508 U.S. 520, 547] measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. It is established in our strict scrutiny jurisprudence that "a law cannot be regarded as protecting an interest "of the highest order" . . . when it leaves appreciable damage to that supposedly vital interest unprohibited." Florida Star v. B.J.F., supra, at 541-542 (SCALIA, J., concurring in part and concurring in judgment) (citation omitted). 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 underinclusive to a substantial extent with respect to each of the interests that respondent has asserted, and it is only conduct motivated by religious conviction that bears the weight of the governmental restrictions. There can be no serious claim that those interests justify the ordinances.  4

Title Page
Syllabus
Synopsis
Opinions, Briefs, Arguments
I  Overview
I-A  Santería Religion
I-B  Case History
II  Free Exercise Clause
II-A  Neutrality
II-A-1  Compelling Interest
II-A-2  Equal Protection
II-A-3  Summary
II-B  General Applicability
III  Ordinances Fail Scrutiny
IV  Conclusion
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