In 1990, however, in the case of Employment Division v. Smith, the Court essentially returned to the principle of Reynolds. Echoing the Reynolds Court's unwillingness to make every citizen "a law unto himself," Justice Scalia, writing for the majority in Smith, declared that "a private right to ignore generally applicable laws . . . is a constitutional anomaly."
Accordingly, in the Smith case itself, the Justices did not apply the compelling interest test to Oregon's extension of its ban of peyote to those who used this hallucinogenic drug in their Native American worship service. Thus, the majority ruled that the Oregon law did not even implicate the religious rights of Native Americans.
Since the Smith decision in 1990, the Court has understood the Free Exercise Clause to be nothing more than a principle of formal equality: If a law singles out a religious practice because it is religious, then the compelling interest test applies. But if the law applies to everyone, then no Free Exercise issue is even raised.
For example, under Smith, a state could not specifically prohibit the wearing of yarmulkes in courtrooms, for that would single out observant Jews for disadvantage. But the state could forbid the wearing of all headgear in courtrooms, even though the impact on observant Jews of these two laws is identical.
