546
O’Connor, J., dissenting
its placed on its legislative authority by provisions such as the Fourteenth Amendment.
The Court's analysis of whether RFRA is a constitutional exercise of Congress' § 5 power, set forth in Part III-B of its opinion, is premised on the assumption that Smith correctly interprets the Free Exercise Clause. This is an assumption that I do not accept. I continue to believe that Smith adopted an improper standard for deciding free exercise claims. In Smith, five Members of this Court—without briefing or argument on the issue—interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as the prohibition is generally applicable. Contrary to the Court's holding in that case, however, the Free Exercise Clause is not simply an antidiscrimination principle that protects only against those laws that single out religious practice for unfavorable treatment. See Smith, supra, at 892-903 (O’Connor, J., concurring in judgment). Rather, the Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conduct— regardless whether it was specifically targeted at religion or applied generally—we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest. See 494 U. S., at 894 (citing Hernandez v. Commissioner, 490 U. S. 680, 699 (1989); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 141 (1987); United States v. Lee, 455 U. S. 252, 257-258 (1982); McDaniel v. Paty, 435 U. S. 618, 626-629 (1978); Wisconsin v. Yoder, 406 U. S. 205, 215 (1972); Gillette v. United States, 401 U. S. 437, 462 (1971); Sherbert v. Verner, 374 U. S. 398, 403 (1963)).
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