Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 55 (1993)

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574

CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

Opinion of Souter, J.

the precedent of prior cases. See 494 U. S., at 878 ("Our decisions reveal that the . . . reading" of the Free Exercise Clause contained in the Smith rule "is the correct one"). Since that precedent is nonetheless at odds with the Smith rule, as I have discussed above, the result is an intolerable tension in free-exercise law which may be resolved, consistently with principles of stare decisis, in a case in which the tension is presented and its resolution pivotal.

While the tension on which I rely exists within the body of our extant case law, a rereading of that case law will not, of course, mark the limits of any enquiry directed to reexamining the Smith rule, which should be reviewed in light not only of the precedent on which it was rested but also of the text of the Free Exercise Clause and its origins. As for text, Smith did not assert that the plain language of the Free Exercise Clause compelled its rule, but only that the rule was "a permissible reading" of the Clause. Ibid. Suffice it to say that a respectable argument may be made that the pre-Smith law comes closer to fulfilling the language of the Free Exercise Clause than the rule Smith announced. "[T]he Free Exercise Clause . . . , by its terms, gives special protection to the exercise of religion," Thomas, 450 U. S., at 713, specifying an activity and then flatly protecting it against government prohibition. The Clause draws no distinction between laws whose object is to prohibit religious exercise and laws with that effect, on its face seemingly applying to both.

Nor did Smith consider the original meaning of the Free Exercise Clause, though overlooking the opportunity was no unique transgression. Save in a handful of passing remarks, the Court has not explored the history of the Clause since its early attempts in 1879 and 1890, see Reynolds v. United States, 98 U. S., at 162-166, and Davis v. Beason, 133 U. S. 333, 342 (1890), attempts that recent scholarship makes clear were incomplete. See generally McConnell, The Origins and Historical Understanding of Free Exercise of Religion,

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