Cite as: 508 U. S. 520 (1993)
Opinion of Scalia, J.
"Section 11. Effective Date. "This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah."
Justice 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, at 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. Mc-Daniel 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
557
Page: Index Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 NextLast modified: October 4, 2007