SCALIA, with whom THE CHIEF JUSTICE joins, concurring in part and concurring
in the judgment.
The Court analyzes the "neutrality" and the "general applicability"
of the Hialeah ordinances in separate sections (Parts II-A
and II-B, respectively), and allocates various invalidating
factors to one or the other of those sections. If it were necessary to
make a clear distinction between the two terms, I would draw a line somewhat
different from the Court's. But I think it is not necessary, and would
frankly acknowledge that the terms are not only "interrelated," ante
531, but substantially overlap.
The terms "neutrality" and "general applicability"
are not to be found within the First Amendment
itself, of course, but are used in Employment Div., Dept. of Human Resources
of Ore. v. Smith, 494
U.S. 872 (1990), and earlier cases to describe those characteristics
which cause a law that prohibits an activity a particular individual wishes
to engage in for religious reasons nonetheless not to constitute a "law
. . . prohibiting the free exercise" of religion within the meaning of
the First Amendment. In my view, the defect of lack of neutrality applies
primarily to those laws that by their terms impose disabilities on the
basis of religion (e.g., a law excluding members of a certain sect from
public benefits, cf. McDaniel v. Paty, 435
U.S. 618 (1978)), see Bowen v. Roy, 476
U.S. 693, 703-704 (1986) (opinion of Burger, C.J.); whereas the defect
of lack of general applicability applies primarily to those laws which,
though neutral in their terms, through their design, construction, or enforcement
target the practices of a particular religion for discriminatory treatment,
see Fowler v. Rhode Island, 345
U.S. 67 (1953). But certainly a law that is not of general applicability
(in the sense [508
U.S. 520, 558] I have described) can be considered "nonneutral";
and certainly no law that is nonneutral (in the relevant sense) can be
thought to be of general applicability. Because I agree with most of the
invalidating factors set forth in Part II of the Court's opinion, and because
it seems to me a matter of no consequence under which rubric ("neutrality,"
Part II-A, or "general applicability," Part II-B) each invalidating factor
is discussed, I join the judgment of the Court and all of its opinion except
2 section 2 of Part II-A.
I do not join that section, because it departs
from the opinion's general focus on the object of the laws at issue to
consider the subjective motivation of the lawmakers, i.e., whether the
Hialeah City Council actually intended to disfavor the religion of Santeria.
As I have noted elsewhere, it is virtually impossible to determine the
singular "motive" of a collective legislative body, see, e.g., Edwards
v. Aguillard, 482
U.S. 578, 636-639 (1987) (dissenting opinion), and this Court has a
long tradition of refraining from such inquiries, see, e.g., Fletcher v.
Peck, 6 Cranch 87, 130-131 (1810) (Marshall, C.J.); United States v. O'Brien,
U.S. 367, 383-384 (1968).
Perhaps there are contexts in which determination
of legislative motive must be undertaken. See, e.g., United States v. Lovett,
U.S. 303 (1946). But I do not think that is true of analysis under
the First Amendment (or the Fourteenth,
to the extent it incorporates the First). See Edwards v. Aguillard, supra,
at 639 (SCALIA, J., dissenting). The First Amendment does not refer
to the purposes for which legislators enact laws, but to the effects of
the laws enacted: "Congress shall make no law . . . prohibiting the free
exercise [of religion]. . . ." This does not put us in the business of
invalidating laws by reason of the evil motives of their authors. Had the
Hialeah City Council set out resolutely to suppress the practices of Santeria,
but ineptly adopted ordinances that failed to do so, I do not see how those
laws could be said to "prohibi[t] the free exercise" of religion. [508
U.S. 520, 559] Nor, in my view, does it matter that a legislature
consists entirely of the purehearted, if the law it enacts in fact singles
out a religious practice for special burdens. Had the ordinances here been
passed with no motive on the part of any councilman except the ardent desire
to prevent cruelty to animals (as might in fact have been the case), they
would nonetheless be invalid.