568
Opinion of Souter, J.
tion systems, see Frazee, supra; Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); and Sherbert, supra, as "stand[ing] for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason." 494 U. S., at 884. But prior to Smith the Court had already refused to accept that explanation of the unemployment compensation cases. See Hobbie, supra, at 142, n. 7; Bowen v. Roy, 476 U. S. 693, 715-716 (1986) (opinion of Blackmun, J.); id., at 727-732 (opinion of O'Connor, J., joined by Brennan and Marshall, JJ.); id., at 733 (White, J., dissenting). And, again, the distinction fails to exclude Smith: "If Smith is viewed as an unemployment compensation case, the distinction is obviously spurious. If Smith is viewed as a hypothetical criminal prosecution for peyote use, there would be an individual governmental assessment of the defendants' motives and actions in the form of a criminal trial." McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1124 (1990). Smith also distinguished the unemployment compensation cases on the ground that they did not involve "an across-the-board criminal prohibition on a particular form of conduct." 494 U. S., at 884. But even Chief Justice Burger's plurality opinion in Bowen v. Roy, on which Smith drew for its analysis of the unemployment compensation cases, would have applied its reasonableness test only to "denial of government benefits" and not to "governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons," Bowen v. Roy, supra, at 706 (opinion of Burger, C. J., joined by Powell and Rehnquist, JJ.); to the latter category of governmental action, it would have applied the test employed in Yoder, which involved an across-the-board criminal prohibition and which Chief Justice Burger's opinion treated as an ordinary free-
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