"Our constitution, our precedents, and (our) own best human judgments": a survey of free exercise state constitutional interpretation in the wake of Oregon v. Smith.

• Author: McIver, Robert
• Position: Chief judge Lawrence H. Cooke Eighth Annual State Constitutional Commentary Symposium

1. Introduction

   For decades, the United States Supreme Court stood as a national defender of the free exercise of religion. In the 1960s, the Court was unflinchingly adamant that "[t]he door of the Free Exercise Clause stands tightly closed against any governmental regulation," (1) and reviewed any burden on religion through the searching inquiry of strict scrutiny. (2) However, in 1990 the Court abruptly turned its back on the Free Exercise Clause in Oregon u. Smith. (3) The Court refused to acknowledge the precedent of the 1960s and 1970s for what it was, and lowered the standard of review to mere rational basis for facially neutral, generally applicable legislation, regardless of the burden it placed on a religious entity. (4)

   The removal of federal protections still allows state courts to adopt the federal pre-Smith tests through the use of their state constitutions. Even by the time Smith was decided, many state courts had "rediscovered] [their] state constitutions" and were becoming more and more accustomed to the role of state courts in the system of "New Federalism" (5) in place following the Supreme Court's decision Michigan v. Long. (6) Some state courts immediately transitioned and quickly built a body of state constitutional case law providing heightened protections for free exercise. (7) Others were plunged into a state of uncertainty, and would not define the protections of religion for decades. (8)

   It is the purpose of this article to articulate the state of state constitutional protections for free exercise of religion after Oregon v. Smith. The focus will start on the history of religious protections federally and will analyze the underlying rationale of the federal precedent. It will then analyze the role of state courts in the federalist system and describe how other state courts have interpreted constitutional provisions that mirror the strengthened language in New York State Constitution article I, section 3. Ultimately, it is concluded that Smith should be scrutinized by state courts, legislatures, and practitioners, and that these individuals and entities can and should employ a number of methods to restore the historic level of protection for religious liberties.

2. The Federal History and Traditions

   The history of the Supreme Court's handling of the First Amendment's Free Exercise Clause is somewhat varied, although over the years certain trends emerge. In the late nineteenth century, the Court rejected two free exercise challenges to laws that directly targeted polygamy. The cases were heard over a decade apart, with the first, Reynolds v. United States, (9) decided in 1878, and the second, Davis v. Beason, (10) decided in 1890. In both cases, a unanimous Supreme Court upheld statutes criminalizing the Mormon practice. (11) In Beason, Justice Field drew parallels between bigamy and the practices of human sacrifice and sati (widow burning). (12) The Court ultimately dispelled with the free exercise challenge stating, "[the crime of bigamy] is not the less odious because [it is] sanctioned by what any particular sect may designate as 'religion.'" (13)

   In the decades that followed the Mormon polygamy cases, the Court struck similar chords with regard to free exercise. In United States v. Schwimmer, (14) the Seventh Circuit Court of Appeals held against a Hungarian-born Quaker, who in her application for citizenship, claimed that she "would not take up arms personally" in defense of the United States. (15) Her application was subsequently denied, and she eventually appealed to the Supreme Court. (16) A divided Court upheld the statute, with Justice Holmes dissenting. (17) Holmes, joined by Justice Brandeis, suggested that "many citizens agree with the applicant's belief and that I had not supposed hitherto that we regretted our inability to expel them because they believe more than some of us do in the teachings of the Sermon on the Mount." (18)

   While glimmers of hope occasionally shone in an occasional dissent, (19) heightened protections for free exercise were not fully articulated until the mid-twentieth century. Generally, the Court's major cases involve fact patterns in which, at least in the Court's view, the government's interests were immensely important. In Reynolds, the Court held against an interest that it compared to human sacrifice. (20) In Schwimmer, the majority held that the failure to take up arms on behalf of the country was contrary to a "fundamental principle of the Constitution." (21) While it is true that the Court also upheld blue laws, (22) it is safe to say that the Court's review in the area of free exercise was mainly in areas that it felt society had a significant interest in regulating. (23) This is not to say that the Court had by any means expressly adopted a heightened standard, but rather that a reading of these cases shows that the Court did not tread lightly into the arena of free exercise.

   In West Virginia State Board of Education v. Barnette, (24) the Court took its first steps in heightening its standard of review for free exercise infringements. In that case, Jehovah's Witness children declined to salute the flag and recite the pledge of allegiance on the ground that their religion considered the flag to be an "image" and therefore that the pledge constituted worship. (25) The children were expelled from school and the parents were threatened with prosecution for violating a criminal delinquency statute. (26) The Supreme Court affirmed the injunction of the regulation over a three judge dissent. (27) Justice Jackson's majority opinion specifically rejected that First Amendment freedoms were subjected to lower rational basis review:

   The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. (28) While Justice Jackson did not take the final step of explicitly requiring that the State produce a compelling interest, he did specifically ' reject rational basis review. (29) Ultimately, the significant state objective of patriotism failed to meet Jackson's heightened standard. (30) This opinion seemingly set the footing for the Court's unequivocal adoption of the compelling state interest test in Sherbert v. Verner (31) and Wisconsin u. Yoder. (32)

   In Sherbert, the Supreme Court reviewed the case of a Seventh-Day Adventist who was discharged by her employer after refusing to work on her Sabbath. (33) The State Employee Security Commission denied the appellant's claim for unemployment compensation, (34) and the lower courts affirmed the commission's decision. (35) The Supreme Court reversed, finding that any incidental burden on free exercise must be justified by a "compelling state interest." (36) In analyzing its own justification for the heightened standard, the Court remarked that historically it had rejected free exercise challenges in instances where the "conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order." (37) The Court cited to Reynolds in drawing this distinction. (38) Notably, the standard of review was not diminished "even though the burden may be characterized as being only indirect." (39)

   Nine years later, the compelling state interest test was unambiguously reaffirmed in Wisconsin v. Yoder. (40) In this case, Amish parents were convicted of violating the state's compulsory public school attendance law. (41) They challenged the law as violating their free exercise, namely that their religion required them to remain "aloof from the world ...." (42)

   The Wisconsin Supreme Court applied federal law and overturned the convictions, and the State appealed to the federal Supreme Court. (43) The Court again held that the compelling state interest test applied and, despite the State's "high responsibility for education of its citizens," (44) the State's argument failed to sustain its burden. (45)

   For nearly three decades, the compelling interest test remained undisturbed and was applied in a variety of settings. (46) This well-functioning jurisprudence would come to a grinding halt in 1990 in Oregon v. Smith. (47) In Smith, the appellees/claimants were dismissed from their employment for taking peyote in accordance with a ceremony of their Native American Church. (48) The claimants sought review after they were denied unemployment compensation. (49)

   Writing for the majority, Justice Scalia referred to Yoder as a "hybrid situation" as it implicated both free exercise and the fundamental right of parents to determine the best interest of their children. (50) Barnette was similarly distinguished on the ground that it also concerned fundamental free speech rights. (51) This rationale was criticized by Justice O'Connor's concurring opinion (52) and in subsequent reviews, which note that the "hybrid" rationale "has never been central to another Supreme Court decision" (53) and that Smith itself may have logically implicated the fundamental right of association. (54) Justice Scalia additionally (and somewhat summarily) distinguished Sherbert and similar cases in which religious practices were treated in a different manner than secular interests. (55) Overnight, the protections for free exercise against laws of general applicability were reduced, from the most searching review a court can engage in, to mere rational basis. (56)

   Congress reacted swiftly to the Smith decision, and by 1993 it passed the Religious Freedom Restoration Act (RFRA). (57) This act specifically addressed the Smith decision (58) and attempted to reinstate the compelling interest test. (59) However, part of this...