a.    Scalia, who can write a great dissent but cannot write a majority opinion to save his life, held that the law did not violate the Free Exercise Clause.  First, he pretended that the Supreme Court in Smith was just following many years of legal precedent, and he pretends to stick to this legal precedent, but distinguishes the facts of this case from previous cases (like Yoder).

b.    Scalia argue that this case does not present “such a hybrid situation” as, say, Yoder, because this case does not deal with Ps’ communicative activity or parental right.  It just deals with Ps doing peyote for religious reasons.

c.  The test Scalia essentially adopts is: “If prohibiting religion is merely the incidental effect of a generally applicable and otherwise valid provision, the First Am. is not offended.”  The effect of the Oregon law was incidental and thus not violative of the First Am.

c.    We reject the Scherbert test in this context because that test is only limited to employment compensation situations.  It would be a “constitutional anomaly” to have the State meet strict scrutiny with this statute, since allowing a person to not obey the law for religious reasons (as in this case) if the state does not show a compelling interest would allow all kinds of religious believers to violate State law.

1.  This isn’t true about the limitation of Scherbert.  Yoder applied the same test as Scherbert, and that was not in the “employment compensation” field.

d.    If the Scherbert test were used, it could be used to strike down virtually all areas of law from civil obligations to paying taxes to manslaughter and child neglect laws.

1.  It could be used for this, but most likely these laws would pass strict scrutiny under the Scherbert test (just as O’Connor in this case felt the peyote law passed strict scrutiny).

e.    If Ps want an exemption, they should go to the state legislature.  State legislatures, through the political process, should exempt religions to certain legislation if they choose.  But this should not be left up to the court.

1.  Obviously, these exemptions could create serious Establishment Clause issues.