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

• Jurisdiction: Oregon

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

The "free exercise" clauses of Article I 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, 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 of the United States Constitution. The pattern was set in City of Portland v. Thornton, 174 Or 508, 149 P2d 972 (1944). The plaintiff there urged the court to interpret Article I, sections 2 and 3, independently of federal First Amendment law (Appellant's Brief at 114-19, Appellant's Reply Brief at 13, City of Portland v. Thornton, 174 Or 508, 149 P2d 972 (1944) (docket number not available)), but the court declined to do so. It acknowledged that United States Supreme Court decisions are "not conclusive as to the construction of the State Constitution," 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 court followed the same approach in Baer v. City of Bend, 206 Or 221, 292 P2d 134 (1956) (rejecting 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, 314-31, 330 P2d 5 (1958) (upholding zoning ordinance that barred church from residential area).

In Salem Coll. & Acad., Inc. v. Employment Div., 298 Or 471, 695 P2d 25 (1985), the court changed course. The case involved a challenge to the application of the Unemployment Compensation Act to religious schools. The court of appeals had decided the case on First Amendment grounds, without deciding the state constitutional issue. That approach, the supreme court held, "departed from the judicial responsibility to determine the state's own law before deciding whether the statute falls short of federal constitutional standards." Salem Coll. & Acad., Inc., 298 Or at 484. (Other departures from that "judicial responsibility" are catalogued in Freedom Socialist Party v. Bradbury, 182 Or App 217, 228-31, 48 P3d 199 (2002) (Landau, J., concurring).) The court in Salem College went on to interpret Article I, sections 2 and 3, in light of their text and the historical context in which they 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 Coll. & Acad., Inc., 298 Or at 484-92.

Two years later, the court made explicit what was implicit in Salem College. In Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 369, 723 P2d 298 (1986), 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 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 & Indus., 322 Or 132, 146, 903 P2d 351 (1995).

§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, may be invoked against governmental action, but not against private conduct. In U. S. Nat. Bank of Portland v. Snodgrass, 202 Or 530, 534, 275 P2d 860 (1954), a testator disinherited his daughter 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." Snodgrass, 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 or Religious Organization Differently from Another

In Salem Coll. & Acad., Inc. v. Employment Div., 298 Or 471, 695 P2d 25 (1985), 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 Employment Division had assessed an inter-denominational Christian school, not affiliated with any specific church, for reimbursement of unemployment compensation paid to former employees. The school argued on appeal that Oregon's unemployment compensation law did not apply to it, but if it did, its application to the school would violate Article I, sections 2 and 3. Salem Coll. & Acad., 298 Or at 484. The court agreed with the school that a statutory scheme could not, consistent with those guarantees, discriminate 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 Coll. & Acad., 298 Or at 488-89. The court concluded, however, that the law did not violate that principle, because the exemption in question did not extend to schools of any kind. Salem Coll. & Acad., 298 Or at 495.

Since Salem College, a basic theme of Oregon's case law...