O’Connor’s Dissent

a.    “The First Am. does not distinguish between laws that are generally applicable and laws that target religious practices.”

b.     In her dissent, O’Connor thinks Scalia’s “incidental effect” test is incorrect, and she would apply the Scherbert test.  This would be consistent with the past holdings of the Court.  Under Scherbert, the state’s law does burden Ps’ Free Exercise.  Peyote is  a “sacrament” of Native American Church and is vital to Ps’ ability to practice their religion.  The state statute, which is neutral on its face, burdens Ps ability to practice their religion.  Thus, the next step in the Scherbert test is to see if the law meets strict scrutiny.  The law does meet strict scrutiny, since Oregon has a compelling interest in enforcing laws that control the possession and use of controlled substance by its citizens.  Although she thinks it’s a close call, O’Connor says the criminal prohibition is “essential to accomplish” its overriding interest in preventing the physical harm caused by peyote use to everyone, including Native Americans

1.  Dave agrees with O’Connor that the Scherbert test should apply and that Scalia did not persuasively distinguish the previous cases form this case.

c.A religious exemption would be incompatible with this.