Chapter § 2.2

• Jurisdiction: Oregon

§ 2.2 ARTICLE I, SECTIONS 2 AND 3: FREEDOM OF CONSCIENCE AND RELIGIOUS OPINION

The "free exercise" clauses of Article I of the Oregon Constitution read as follows:

"Section 2. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences."

"Section 3. No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience."

§ 2.2-1 The Oregon Supreme Court Interprets Article I, Sections 2 and 3, Independently of the First Amendment

In its first decisions under Article I, sections 2 and 3, of the Oregon Constitution, the Oregon Supreme Court interpreted those sections by applying the analysis used by the United States Supreme Court in interpreting the Free Exercise Clause of the First Amendment to the United States Constitution. The pattern was set in City of Portland v. Thornton, 174 Or 508, 149 P2d 972, cert den, 323 US 770 (1944). The plaintiff there urged the court to interpret Article I, sections 2 and 3, independently of federal First Amendment law. Appellant's Brief, City of Portland v. Thornton, at 114-19; Appellant's Reply Brief at 13 (docket number not available). However, the court declined to do so. It acknowledged that decisions of the United States Supreme Court are "not conclusive as to the construction of the state Constitution," Thornton, 174 Or at 512, but it concluded that the guarantees of religious liberty in Sections 2 and 3 are "identical in meaning" with the religion clauses of the First Amendment, Thornton, 174 Or at 512. Instead of examining the text of the Oregon provisions and the intent of their authors, the court applied United States Supreme Court precedents under the First Amendment. Thornton, 174 Or at 513. (The Thornton case is described in more detail in § 2.2-4(a).)

The court followed the same approach in Baer v. City of Bend, 206 Or 221, 234, 292 P2d 134 (1956) (rejecting the plaintiff's argument that fluoridation of the municipal water supply violated religious liberty because it constituted forced medication contrary to his religious beliefs), and Milwaukie Co. of Jehovah's Witnesses v. Mullen, 214 Or 281, 291-95, 330 P2d 5 (1958), cert den and appeal dismissed, 359 US 436 (1959) (upholding a zoning ordinance that barred churches from residential areas).

In Salem College & Academy, Inc. v. Employment Division, 298 Or 471, 695 P2d 25 (1985), the court changed course. The case involved a challenge to the application of Oregon's Unemployment Compensation Act to religious schools. The Oregon Court of Appeals had decided the case on First Amendment grounds, without deciding the state constitutional issue. That approach, the Oregon Supreme Court concluded, "departed from the judicial responsibility to determine the state's own law before deciding whether the state falls short of federal constitutional standards." Salem College & Academy, Inc., 298 Or at 484. The court went on to interpret Article I, sections 2 and 3, in light of their text and the historical context in which those provisions arose, without reference to United States Supreme Court decisions under the First Amendment and without reference to its own prior decisions that had relied on federal First Amendment precedent in deciding cases under those sections. Salem College & Academy, Inc., 298 Or at 484-92.

Two years later, the court made explicit what was implicit in Salem College & Academy, Inc. In Cooper, 301 Or at 369, the court disapproved the practice of interpreting Oregon's religion clauses by applying "verbal formulas developed by the United States Supreme Court" in applying the First Amendment. Independent interpretation of Article I, sections 2 and 3, is particularly appropriate because, as the court later put it, those sections "are obviously worded more broadly than the federal First Amendment, and are remarkable in the inclusiveness and adamancy with which rights of conscience are to be protected from governmental interference." Meltebeke v. Bureau of Labor & Industries, 322 Or 132, 146, 903 P2d 351 (1995), overruled in part by State v. Hickman, 358 Or 1, 24, 358 P3d 987 (2015).

§ 2.2-2 Article I, Sections 2 and 3, Restrict Governmental Action, Not Private Conduct

The guarantees of religious liberty in Article I, sections 2 and 3, of the Oregon Constitution may be invoked against governmental action, but not against private conduct. In United States National Bank of Portland v. Snodgrass, 202 Or 530, 534, 275 P2d 860 (1954), a testator's will provided that his daughter would be disinherited if she married a man of "the Catholic faith." The daughter challenged the will on the ground that the condition violated public policy, and cited Article I, sections 2 and 3, as relevant expressions of that policy. The court rejected her reliance on those sections, holding that they "are restraints upon the government in dealing with its citizens and have no bearing on individual actions or transactions." United States National Bank of Portland, 202 Or at 545. The court has never departed from that holding.

§ 2.2-3 Article I, Sections 2 and 3, Protect Religion and Irreligion Alike

§ 2.2-3(a) Equality: Government May Not Treat One Religion Differently from Another

In Salem College & Academy, Inc., 298 Or at 488-89, the Oregon Supreme Court held that Article I, sections 2 and 3, of the Oregon Constitution require equality before the law for all forms of religious institutions. The case involved application of Oregon's unemployment compensation laws, which at the time excluded from coverage religious schools that were "principally supported by a church or convention or association of churches." Former ORS 657.072(1)(a)(B) (1985). The school at issue had operated as "an interdenominational Christian primary and secondary school" since 1945, but the Employment Division determined that it did not fall within that statutory exclusion, and so assessed it for reimbursement of unemployment compensation paid to former employees. Salem College & Academy, Inc., 298 Or at 473-76 (quoting the court of appeals' decision, Salem College & Academy, Inc. v. Employment Division, 61 Or App 616, 618, 659 P2d 415 (1983), rev'd, 298 Or 471, 695 P2d 25 (1985)).

On appeal to the court of appeals, the school argued that Oregon's unemployment compensation law did not apply to it, but that if it did, application of the law to an independent religious school while exempting church-related schools would violate the Establishment Clause of the First Amendment and Article I, sections 2 and 3, of the Oregon Constitution. Salem College & Academy, Inc., 61 Or App at 618. The court of appeals held that exempting schools that are church-related from the Unemployment Compensation Act, while requiring independent religious schools to participate in the Act, violated the Establishment Clause, and the court therefore concluded that it "need not . . . consider the Oregon Constitution." Salem College & Academy, Inc., 61 Or App at 618 & n 1.

The Employment Division petitioned the Oregon Supreme Court to review that decision. As noted in § 2.2-1, the supreme court held that the court of appeals had erred in deciding the case under the federal Establishment Clause, without first considering the Oregon Constitution. It then considered the school's arguments under Article I, sections 2 and 3, and held that those sections prohibit the state from discriminating among religious schools on the basis of their organizational affiliations, because "[e]quality of privileges among religious institutions is implicit in the religion clauses themselves." Salem College & Academy, Inc., 298 Or at 488-89. The court concluded, however, that the law did not violate that principle, because the exemption in question did "not . . . exclude religious schools of any kind." Salem College & Academy, Inc., 298 Or at 495. It therefore reversed the court of appeals' decision and reinstated the Employment Division's decision requiring the school to reimburse the Employment Division for unemployment compensation paid to its former employees. Salem College & Academy, Inc., 298 Or at 495-96.

Since Salem College & Academy, Inc., a basic theme of Oregon's case law under the religious-liberty clauses has been one of equality of treatment for all varieties of belief systems. For some Oregonians, "religion is a matter of truth or error," Cooper, 301 Or at 376, but the court has made clear that the state may never so regard it, because Article I, section 3, treats religion as "opinion," and religious opinions of all kinds are protected, "[n]o matter how specious, how intolerant, how narrow and no matter how prejudiced or how dogmatic" those opinions might appear to persons who do not share them, United States National Bank of Portland, 202 Or at 538. "The tides of immigration and of homegrown religions have changed before and are changing again, and what is exotic today may tomorrow gain many thousands of adherents and potential majority status in some communities." Cooper, 301 Or...