SUPREME COURT OF THE UNITED STATES

                                    --------
                                   No. 95-2074
                                    --------
                   CITY OF BOERNE, PETITIONER v. P. F. FLORES,
                                              __
                           ARCHBISHOP OF SAN ANTONIO,
                                AND UNITED STATES


       ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
                                  FIFTH CIRCUIT

                                 [June 25, 1997]

  JUSTICE SCALIA, with whom JUSTICE STEVENS joins, concurring in part. 

  I write to respond briefly to the claim of JUSTICE O'CONNOR's dissent
(hereinafter "the dissent") that historical materials support a result contrary
to the one reached in Employment Div., Dept. of Human Resources of Ore. v.
                      _________________________________________________
Smith, 494 U. S. 872 (1990).  See post, p. ___ (dissenting opinion).  We held in
______                            ____
Smith that the Constitution's Free Exercise Clause "does not relieve an
_____
individual of the obligation to comply with a `valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that
his religion prescribes (or proscribes).'"  494 U. S., at 879 (quoting United
                                                                       ______
States v. Lee, 455 U. S. 252, 263, n. 3 (1982) (STEVENS, J., concurring in
______    ____
judgment)).  The material that the dissent claims is at odds with Smith either
                                                                  _____
has little to say about the issue or is in fact more consistent with Smith than
                                                                     _____
with the dissent's interpretation of the Free Exercise Clause.  The dissent's
extravagant claim that the historical record shows Smith to have been wrong
                                                   _____
should be compared with the assessment of the most prominent scholarly critic of
Smith, who, after an extensive review of the historical record, was willing to
_____
venture no more than that "constitution-

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ally compelled exemptions [from generally applicable laws regulating conduct]
were within the contemplation of the framers and ratifiers as a possible
     ________________________                                   ________
interpretation of the free exercise clause."  McConnell, The Origins and
______________
Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409,
1415 (1990) (emphasis added); see also Hamburger, A Constitutional Right of
Religious Exemption: An Historical Perspective, 60 Geo. Wash. Law Rev. 915
(1992) (arguing that historical evidence supports Smith's interpretation of free
                                                  _____
exercise).
  The dissent first claims that Smith's interpretation of the Free Exercise
                                _____
Clause departs from the understanding reflected in various statutory and
constitutional protections of religion enacted by Colonies, States, and
Territories in the period leading up to the ratification of the Bill of Rights. 
Post, at 8-14.  But the protections afforded by those enactments are in fact
_____
more consistent with Smith's interpretation of free exercise than with the
                     _____
dissent's understanding of it.  The Free Exercise Clause, the dissent claims,
"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";
thus, even neutral laws of general application may be invalid if they burden
religiously motivated conduct.  Post, at 3.  However, the early "free exercise"
                                _____
enactments cited by the dissent protect only against action that is taken "for"
or "in respect of" religion, post, at 8-11 (Maryland Act Concerning Religion of
                             _____
1649, Rhode Island Charter of 1663, and New Hampshire Constitution); or action
taken "on account of" religion, post, at 11-12 (Maryland Declaration of Rights
                                _____
of 1776 and Northwest Ordinance of 1787); or "discriminat[ory]" action, post, at
                                                                        _____
10 (New York Constitution); or, finally (and unhelpfully for purposes of inter-
preting "free exercise" in the Federal Constitution), action that interferes
with the "free

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exercise" of religion, post, at 8, 11 (Maryland Act Concerning Religion of 1649
                       _____
and Georgia Constitution).  It is eminently arguable that application of
neutral, generally applicable laws of the sort the dissent refers to - such as
zoning laws, post, at 4 - would not constitute action taken "for," "in respect
             ____
of," or "on account of" one's religion, or "discriminatory" action.
  Assuming, however, that the affirmative protection of religion accorded by the
early "free exercise" enactments sweeps as broadly as the dissent's theory would
require, those enactments do not support the dissent's view, since they contain
"provisos" that significantly qualify the affirmative protection they grant. 
According to the dissent, the "provisos" support its view because they would
                                                 ____
have been "superfluous" if "the Court was correct in Smith that generally
                                                     _____
applicable laws are enforceable regardless of religious conscience."  Post, at
                                                                      _____
12.  I disagree.  In fact, the most plausible reading of the "free exercise"
enactments (if their affirmative provisions are read broadly, as the dissent's
view requires) is a virtual restatement of Smith: Religious exercise shall be
                                           _____
permitted so long as it does not violate general laws governing conduct.  The
          _____________________________________________________________
"provisos" in the enactments negate a license to act in a manner "unfaithfull to
the Lord Proprietary" (Maryland Act Concerning Religion of 1649), or "behav[e]"
in other than a "peaceabl[e] and quie[t]" manner (Rhode Island Charter of 1663),
or "disturb the public peace" (New Hampshire Constitution), or interfere with
the "peace [and] safety of th[e] State" (New York, Maryland, and Georgia
Constitutions), or "demea[n]" oneself in other than a "peaceable and orderly
manner" (Northwest Ordinance of 1787).  See post, at 8-12.  At the time these
                                            _____
provisos were enacted, keeping "peace" and "order" seems to have meant,
precisely, obeying the laws.  "[E]very breach of law is against the peace." 
Queen v. Lane, 6 Mod. 128, 87 Eng. Rep. 884, 885 (Q. B. 1704).  Even as late as
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1828, when Noah Webster

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published his American Dictionary of the English Language, he gave as one of the
meanings of "peace": "8. Public tranquility; that quiet, order and security
which is guaranteed by the laws; as, to keep the peace; to break the peace."  2
                                                 ______              _____
An American Dictionary of the English Language 31
(1828). (Ftnote. 1)  This limitation upon the scope of religious exercise would
        (Ftnote. 1)
have been in accord with the background political philosophy of the age
(associated most prominently with John Locke), which regarded freedom as the
right "to do only what was not lawfully prohibited," West, The Case Against a
Right to Religion-Based Exemptions, 4 Notre Dame J. of Law, Ethics & Public
Policy 591, 624 (1990).  "Thus, the disturb-the-peace caveats apparently permit-
ted government to deny religious freedom, not merely in the event of violence or
force, but, more generally, upon the occurrence of illegal actions."  Hamburger,
supra, at 918-919. (Ftnote. 2)  And while, under this interpretation, these
                   (Ftnote. 2)
_____
early "free exercise" enactments support the Court's judgment in Smith, I see no
                                                                 ______
sensible interpretation that could cause them to support what I understand to be
the position of JUSTICE O'CONNOR, or any of Smith's other critics.  No one in
                                            _____
that camp, to my knowledge, contends that their favored "compelling state
interest"
























                    
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   1)  The word "licentious," used in several of the early enactments, likewise
   1)  
meant "[e]xceeding the limits of law."  2 An American Dictionary of the English
Language 6 (1828).
   2)  The same explanation applies, of course, to George Mason's initial draft
   2)  
of Virginia's religious liberty clause, see post, at 12-13.  When it said
                                            ____
"unless, under colour of religion, any man disturb the peace . . . of society,"
it probably meant "unless under color of religion any man break the law."  Thus,
it is not the case that "both Mason's and [James] Madison's formulations
                         ____
envisioned that, where there was a conflict [between religious exercise and
generally applicable laws], a person's interest in freely practicing his
religion was to be balanced against state interests," post, at 14 - at least
                                                      ____
insofar as regulation of conduct was concerned.
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test conforms to any possible interpretation of "breach of peace and order" -
i.e., that only violence or force, or any other category of action (more limited
_____      ____
than "violation of law") which can possibly be conveyed by the phrase "peace and
order," justifies state prohibition of religiously motivated conduct.
  Apart from the early "free exercise" enactments of Colonies, States, and
Territories, the dissent calls attention to those bodies', and the Continental
Congress's, legislative accommodation of religious practices prior to
ratification of the Bill of Rights.  Post, at 14-17.  This accommodation - which
                                     _____
took place both before and after enactment of the state constitutional
protections of religious liberty - suggests (according to the dissent) that "the
drafters and ratifiers of the First Amendment . . . assumed courts would apply
the Free Exercise Clause similarly."  Post, at 17.  But that legislatures
                                      _____
sometimes (though not always) (Ftnote. 3) found it "appropriate," ibid., to
                              (Ftnote. 3)                         ______
accommodate religious practices does not establish that accommodation was
understood to be constitutionally mandated by the Free Exercise Clause.  As we
                                  ________
explained in Smith, "[T]o say that a nondiscriminatory religious-practice exemp-
             ______
tion is permitted, or even that it is desirable, is not to say that it is
constitutionally required."  494 U. S., at 890.  "Values that are protected
against government interference through enshrinement in the Bill of Rights are
not thereby banished from the political process."  Ibid.
                                                   _____
  The dissent's final source of claimed historical support consists of
statements of certain of the Framers in the context of debates about proposed
legislative enactments or debates over general principles (not in connection



























                    
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   3)  The dissent mentions, for example, that only seven of the thirteen
   3)  
Colonies had exempted Quakers from military service by the mid-1700's; and that
"virtually all" of the States had enacted oath exemptions by 1789.  Post, at
 _________                                                          ____
15-16 (emphasis added).

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with the drafting of State or Federal Constitutions).  Those statements are
subject to the same objection as was the evidence about legislative accommo-
dation: There is no reason to think they were meant to describe what was
constitutionally required (and judicially enforceable), as opposed to what was
thought to be legislatively or even morally desirable.  Thus, for example, the
pamphlet written by James Madison opposing Virginia's proposed general
assessment for support of religion, post, at 17-19, does not argue that the
                                    _____
assessment would violate the "free exercise" provision in the Virginia
Declaration of Rights, although that provision had been enacted into law only
eight years earlier, post, at 14; rather the pamphlet argues that the assessment
                     _____
wrongly placed civil society ahead of personal religious belief and, thus,
should not be approved by the legislators, post, at 18.  Likewise, the letter
                                           _____
from George Washington to the Quakers, post, at 20, by its own terms refers to
                                       _____
Washington's "wish and desire" that religion be accommodated, not his belief
that existing constitutional provisions required accommodation.  These and other
examples offered by the dissent reflect the speakers' views of the "proper"
relationship between government and religion, post, at 21, but not their views
                                              _____
(at least insofar as the content or context of the material suggests) of the
constitutionally required relationship.  The one exception is the statement by
Thomas Jefferson that he considered "the government of the United States as
interdicted by the Constitution from intermeddling with religious institutions,
their doctrines, discipline, or exercises," post, at 19-20 (internal quotation
                                            _____
marks omitted); but it is quite clear that Jefferson did not in fact espouse the
broad principle of affirmative accommodation advocated by the dissent, see
McConnell, 103 Harv. L. Rev., at 1449-1452.
  It seems to me that the most telling point made by the dissent is to be found,
not in what it says, but in

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what it fails to say.  Had the understanding in the period surrounding the
ratification of the Bill of Rights been that the various forms of accommodation
discussed by the dissent were constitutionally required (either by State
Constitutions or by the Federal Constitution), it would be surprising not to
find a single state or federal case refusing to enforce a generally applicable
statute because of its failure to make accommodation.  Yet the dissent cites
none - and to my knowledge, and to the knowledge of the academic defenders of
the dissent's position, see, e.g., id., at 1504, 1506-1511 (discussing early
                             _____ ____
cases), none exists.  The closest one can come in the period prior to 1850 is
the decision of a New York City municipal court in 1813, holding that the New
York Constitution of 1777, quoted post, at 10, required acknowledgement of a
                                  _____
priest-penitent privilege, to protect a Catholic priest from being compelled to
testify as to the contents of a confession.  People v. Philips, Court of General
                                             ______    ________
Sessions, City of New York (June 14, 1813), excerpted in Privileged
                                            _____________
Communications to Clergymen, 1 Cath. Lawyer 199 (1955).  Even this lone case is
weak authority, not only because it comes from a minor
court, (Ftnote. 4) but also because it did not involve a statute, and the same
       (Ftnote. 4)
result might possibly have been achieved (without invoking constitutional
entitlement) by the court's simply modifying the common-law rules of evidence to
recognize such a privilege.  On the other side of the ledger, moreover, there
are two cases, from



























                    
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   4)  The Court of General Sessions was a mayor's court, and the ruling in
   4)  
Phillips was made by DeWitt Clinton, the last mayor to preside over that court,
________
which was subsequently reconstituted as the Court of Common Pleas.  Clinton had
never been a jurist, and indeed had never practiced law.  Some years before
Phillips, he was instrumental in removing the political disabilities of Catho-
________
lics in New York.  See 4 Dictionary of American Biography 221-222, 224 (1943).

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the Supreme Court of Pennsylvania, flatly rejecting the dissent's view.  In
Simon's Executors v. Gratz, 2 Pen. & W. 412 (Pa. 1831), the court held that a
_________________    ______
litigant was not entitled to a continuance of trial on the ground that appearing
on his Sabbath would violate his religious principles.  And in Stansbury v.
                                                               _________
Marks, 2 Dall. 213 (Pa. 1793), decided just two years after the ratification of
______
the Bill of Rights, the court imposed a fine on a witness who "refused to be
sworn, because it was his Sabbath." (Ftnote. 5)
                                    (Ftnote. 5)
  I have limited this response to the new items of "historical evidence" brought
forward by today's dissent.  (The dissent's claim that "[b]efore Smith, our free
                                                                 ______
exercise cases were generally in keeping" with the dissent's view, post, at 3,
                                                                   _____
is adequately answered in Smith itself.)  The historical evidence marshalled by
                          _____
the dissent cannot fairly be said to demonstrate the correctness of Smith; but
                                                                    ______
it is more supportive of that conclusion than destructive of it.  And, to return
to a point I made earlier, that evidence is not compatible with any theory I am
familiar with that has been proposed as an alternative to Smith.  The dissent's
                                                          _____
approach has, of course, great popular attraction.  Who can possibly be against
the abstract proposition that government should not, even in its general,
nondiscriminatory laws, place unreasonable burdens upon religious practice? 
Unfortunately, however, that abstract 
                                     proposition must ultimately be reduced to
concrete cases.  The issue presented by Smith is, quite simply, whether the
                                        _____
people, through their elected representatives, or rather this Court, shall
control the outcome of those concrete cases.  For example, shall it be the
determination of this Court, or rather



























                    
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   5)  Indeed, the author of Simon's Executors could well have written Smith:
   5)                        _________________                         _____
"[C]onsiderations of policy address themselves with propriety to the
legislature, and not to a magistrate whose course is prescribed not by
discretion, but rules already established."  2 Pen. & W., at 417.

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of the people, whether (as the dissent apparently believes, post,, at 4) church
                                                            _____
construction will be exempt from zoning laws?  The historical evidence put
forward by the dissent does nothing to undermine the conclusion we reached in
Smith: It shall be the people.
______