A decade after Smith: an examination of the New York Court of Appeals' stance on the free exercise of religion in relation to Minnesota, Washington, and California.

• Jurisdiction: United States
• Author: Chun, So
• Date: 22 June 2000

The New York Court of Appeals is oblivious as to the existence of its own state constitution regarding free exercise of religion. Ten years have lapsed since Employment Division, Department of Human Resources v. Smith,(1) a controversial United States Supreme Court decision which prompted many states to vigorously apply their own religious clauses.(2) Smith held that Congress could not obligate states to advance a compelling interest for a generally applicable law that infringed on a citizen's religious liberty.(3) Smith was a shocking and ill received opinion, conceived by many to be a malicious design to coerce minority religions into conformance with the mainstream.(4) However, many scholars recognized the holding as an opportunity for states to begin applying their own state constitutions, thereby mitigating the impact of the United States Supreme Court's sudden curtailment of religious rights.(5) Since the Smith decision, there has been a fervor of activity on academic, judicial, and political levels.(6) Nevertheless, the New York Court of Appeals remains dormant in the application of its own law.

This Comment examines the New York Court of Appeals' reluctance to interpret the state's free exercise provision more broadly, despite the initiative taken by Minnesota, Washington, and California--states which derived their constitutional provisions from New York's free exercise clause.(7) This Comment is divided into four parts. Part I addresses the mechanics of state constitutional law, detailing: (1) the effect landmark cases have had on religious jurisprudence, (2) the differences that reside between state constitutions and their federal counterpart, (3) the hazards of a state relying too heavily on federal law, and (4) the benefits of state constitutional law.(8) Part II focuses on Smith's aftermath, discussing: (1) how Smith created the perfect setting for states to capitalize on their state constitutions, (2) the four approaches states have adopted since Smith, and (3) the Minnesota, Washington, and California judicial approaches to free exercise claims.(9) Part III addresses New York, focusing on the state's religious history and Court of Appeals cases that create free exercise jurisprudence.(10) Part IV concludes the Comment with an examination of New York's constitution and case law.(11)

1. THE MECHANICS OF STATE CONSTITUTIONAL LAW

   1. Subordinating State Constitutional Law: The Sherbert v. Verner(12) Era

      In 1963, Sherbert v. Verner influenced state courts to look toward federal precedent when analyzing free exercise claims.(13) Sherbert held that states must advance a compelling interest in order to justify an infringement on an individual's religious liberties.(14) Prior to Sherbert, states needed only to demonstrate that the laws were rationally based and that they satisfied the requirements of due process.(15) Additionally, there are suggestions that the laws could not be unnecessary, unfair, unreasonable, or discriminatory.(16) Sherbert forced states to accommodate religious needs by pushing the text of state constitutions to their maximum.(17) Although Sherbert raised the standard states must meet in order to infringe on an individual's religious rights, it also resulted in the exclusion of state constitutional analysis in free exercise claims.(18) Though a healthy and robust body of federal law resulted, state constitutional development remained stagnant.(19) States carelessly relied on federal precedent, even in situations where the Supreme Court had not ruled, refusing the opportunity to apply their own state constitutions.(20)

   2. An Argument for State Autonomy: Differences that Reside in the Text of State Constitutions and Other Considerations

      During the Sherbert era, states followed federal law even though they were not bound to model their decisions after the United States Supreme Court.(21) Some scholars suggest that state constitutions can offer higher, lower, and additional protections than those articulated in the Federal Constitution.(22) In contrast, other scholars advance the argument that federal constitutional adjudication is relevant only to inform states of the minimal level of protection they are obligated to provide their citizens.(23) Nevertheless., many states interpret their state constitutions in a manner that duplicates federal analysis, even when certain clauses and amendments do not strictly correlate with the Federal Constitution.(24)

      An examination of state constitutions reveals they are very distinct from their federal counterpart.(25) On the surface, state constitutions vary from the Federal Constitution and each other in terms of length, the rights provided, distributions of power, policy areas, and amendments.(26) State constitutions are typically three times longer than the Federal Constitution.(27) Contributing to their length, "[m]ost state constitutions contain separate articles on finance, revenue, corporations, and education."(28) State constitutions do not speak in general terms when providing rights to their citizens; rather they are elaborate and very specific.(29) Furthermore, state protection of rights may not apply only to governmental bodies, but may also include protection against non-government entities.(30) The power under the Federal Constitution is deemed limited unless unequivocally granted; in contrast, state power is considered plenary except where power is expressly withheld.(31) Whereas Congress has certain powers but is not obligated to execute them, state constitutions commit states to certain policy objectives through specific means or instructions.(32) Averaging over 100 amendments, state constitutions are amended more frequently than the Federal Constitution,(33) demonstrating that the democratic process is more evident in the text of state constitutions.(34)

      Even when the language of a state constitution mirrors the Federal Constitution, state courts are not bound to arrive at an identical holding.(35) Some state constitutions were adopted even before the construction of the Federal Constitution,(36) which accounts for the different considerations state and federal courts have in rendering a decision.(37) Historical analysis alone may warrant a contrary determination.(38) When a state interprets its constitution, the state must take into account its unique history, socioeconomic and demographic needs, local desires and interests, and the public attitudes of the state's citizens.(39) On the other hand, the Supreme Court is occupied particularly with national policy matters and not necessarily concerned with the intricacies unique to each state.(40) In essence, federal and state courts apply different laws, thereby making different holdings inevitable. However, many state courts ignore this phenomenon and cling to the skirts of federal law.(41)

   3. Hazards in Relying on Federal Law: The Smith Lesson

      States should be wary about becoming too dependent on federal precedent. In Smith, the Supreme Court cast away the compelling interest test,(42) subjugating most religious liberty claims to a rational basis standard since most litigants relied on the First Amendment.(43) Because state courts failed to develop their own state constitutional jurisprudence, there was in no insulating case law to cushion these effects.(44)

      One lesson to be gained from free exercise jurisprudence is that, when a state relies solely on federal law, the state exposes its citizens not only to the uncertainty of,(45) and inadequate guidance given by federal precedent, but also to any reduction of rights the Supreme Court deems appropriate.(46) A disturbing implication of the lack of state constitutional adjudication is that state constitutions are considered inferior documents, incapable of adjudicating constitutional dilemmas, even when the origin of the claim is state-based.(47) The state decision also becomes vulnerable to federal review unless the phrase "independent and adequate state grounds" is iterated.(48)

   4. The Benefits of State Constitutional Law

      States should develop theft own constitutional law. State courts tend to demystify their state constitution by saying "precisely what they mean."(49) In general, state constitutions have more amendments than the Federal Constitution(50) and, thus, the "democratic process is more likely to be reflected" in a state constitution.(51) Additionally, states are prone to adjudicate claims that the Supreme Court will not hear(52) because states are not burdened with national policy considerations.(53) State courts are also not saddled with jurisdictional constraints like case and controversy, and issues regarding "standing, ripeness, and mootness."(54) Even if a certain state takes a position that is unfavored, with the passage of time that position may become popular and serve as grounds for a change in federal law.(55) In addition, state constitutional adjudication can help protect any abbreviation of rights by the Supreme Court.(56)

2. SMITH'S AFTERMATH: SHUNNING SMITH

   1. A Perfect Setting

      Sherbert pushed state constitutions to their maximum--resulting in states relying almost solely on federal law.(57) However, there was nothing to prevent states from interpreting their own state constitutions during Sherbert's reign, and, had they done so, states would have found a broader definition of free exercise than was provided by the First Amendment.(58) For example, the Tennessee Constitution prohibits the government from merely interfering with religious liberty.(59) Similarly, Oregon's Constitution unequivocally states that free exercise of religion is superior to ordinary legislation.(60) Other constitutions restrict what the government can assert as an interest to enforce a law--an embargo more potent against the state than the compelling interest test.(61) State constitutions are rich in history and judges can give special attention to a state's particular needs.(62)

      The Smith decision has created a prime...