Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 48 (1993)

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Cite as: 508 U. S. 520 (1993)

Opinion of Souter, J.

And the distinction Smith draws strikes me as ultimately untenable. If a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule, and, indeed, the hybrid exception would cover the situation exemplified by Smith, since free speech and associational rights are certainly implicated in the peyote ritual. But if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in what Smith calls the hybrid cases to have mentioned the Free Exercise Clause at all.

Smith sought to confine the remaining free-exercise exemption victories, which involved unemployment compensa-substantive due process challenge to a compulsory school attendance law and which required merely a showing of " 'reasonable[ness].' " 406 U. S., at 233 (quoting Pierce, supra, at 535). Where parents make a "free exercise claim," the Yoder Court said, the Pierce reasonableness test is inapplicable and the State's action must be measured by a stricter test, the test developed under the Free Exercise Clause and discussed at length earlier in the opinion. See 406 U. S., at 233; id., at 213-229. Quickly after the reference to parental rights, the Yoder opinion makes clear that the case involves "the central values underlying the Religion Clauses." Id., at 234. The Yoders raised only a free-exercise defense to their prosecution under the school-attendance law, id., at 209, and n. 4; certiorari was granted only on the free-exercise issue, id., at 207; and the Court plainly understood the case to involve "conduct protected by the Free Exercise Clause" even against enforcement of a "regulatio[n] of general applicability," id., at 220.

As for Cantwell, Smith pointed out that the case explicitly mentions freedom of speech. See 494 U. S., at 881, n. 1 (citing Cantwell v. Connecticut, 310 U. S., at 307). But the quote to which Smith refers occurs in a portion of the Cantwell opinion (titled: "[s]econd," and dealing with a breach-of-peace conviction for playing phonograph records, see 310 U. S., at 307) that discusses an entirely different issue from the section of Cant-well that Smith cites as involving a "neutral, generally applicable law" (titled: "[f]irst," and dealing with a licensing system for solicitations, see Cantwell, supra, at 303-307). See Smith, supra, at 881.

567

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