Making Sense of Hybrid Rights: an Analysis of the Nebraska Supreme Court's Approach to the Hybrid-rights Exception in Douglas County v. Anaya

• Publication year: 2021

85 Nebraska L. Rev. 311. Making Sense of Hybrid Rights: An Analysis of the Nebraska Supreme Court's Approach to the Hybrid-Rights Exception in Douglas County v. Anaya

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Note(fn*)

Benjamin I. Siminou

Making Sense of Hybrid Rights: An Analysis of the Nebraska Supreme Court's Approach to the Hybrid-Rights Exception in Douglas County v. Anaya

TABLE OF CONTENTS

I. Introduction ...................................................... 312
II. Background ....................................................... 314
A. The Legal Landscape of Hybrid-Rights Claims ................... 314
1. The SmithGeneral Rule and the Origin of the
Hybrid-Rights Exception .................................... 315
2. Applying the Hybrid-Rights Exception ....................... 316
a. The "Refusal-to-Recognize" Approach ..................... 318
b. The "Independently-Viable-Claim" Approach ............... 319
c. The "Colorable-Claim" Approach .......................... 320
d. The "Genuinely-Implicated" Approach ..................... 324
3. The Historical Significance of Joint Free
Exercise and Parental Rights Claims ........................ 326
B. Douglas County v. Anaya .......................... 328
1. Facts ...................................................... 328
2. Holding .................................................... 330
III. Analysis ........................................................ 332

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A. The Three Mainstream Approaches to the Hybrid-
Rights Exception are Inherently Flawed ........................ 332
1. The Refusal-to-Recognize Approach Ignores
Binding Precedent and Contradicts the
Conclusions of the Majority of Jurisdictions ............... 333
2. The Independently-Viable-Claim Approach
Contradicts Hybrid-Rights Precedent ........................ 336
3. The Colorable-Claim Approach also Contradicts
Hybrid-Rights Precedent .................................... 338
B. Courts Should Use the Genuinely-Implicated
Standard when Evaluating the Applicability of the
Hybrid-Rights Exception ....................................... 340
1. The Genuinely-Implicated Approach Best
Reflects the Implicit Logic of the Hybrid-Rights
Cases ...................................................... 340
2. The Genuinely-Implicated Approach Preserves
the Hybrid-Rights Exception as a Rare
Departure from the Smith General Rule ......... 342
C. The Anayas Raised a Valid Hybrid-Rights Claim
Under the Genuinely-Implicated Approach ....................... 346
IV. Conclusion ....................................................... 347

I. INTRODUCTION

April 17, 1990, is a day that has, or should have, tremendous significance for anyone with even a passing interest in religious liberty. On that day the Supreme Court handed down its infamous decision, Employment Division, Department of Human Resources v. Smith,(fn1) which unexpectedly and dramatically altered the degree of protection available to religious observers under the Free Exercise Clause.(fn2) Prior to Smith, the general consensus in the legal community was that even laws unintentionally burdening a claimant's right to free exercise of religion had to serve a compelling governmental interest(fn3) to pass constitutional muster.(fn4) Smith reversed this paradigm by charac

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terizing prior free exercise jurisprudence as actually standing for the principal that a neutral law "of general applicability need not be justified by a compelling governmental interest"(fn5) even where the law prohibits a person from doing something his religion demands or requires him to do something that his religion forbids.(fn6) While this general rule threatened to leave religious liberty vulnerable to frequent limitation, the Smith Court carved out a narrow exception that still left some bite in the Free Exercise Clause. Under the so-called hybrid-rights exception to Smith's general rule, neutral and generally applicable laws are still subject to strict scrutiny review when they implicate not only the claimant's free exercise rights but "other constitutional protections" as well.(fn7) In particular, the hybrid-rights exception accommodates landmark cases in which the Supreme Court used heightened scrutiny to review laws burdening both free exercise rights and parental rights.(fn8)

The Nebraska Supreme Court was called upon to consider this exact combination of rights, and thus the applicability of the hybridrights exception, when it heard Douglas County v. Anaya.(fn9) In Anaya, an infant's parents refused to comply with Nebraska's mandatory metabolic testing law on the grounds that the law conflicted with their religious beliefs regarding the proper care of their child. The Nebraska Supreme Court struggled to make sense of the muddled hy

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brid-rights concept and consequently erred in applying the exception when it held that neutral and generally applicable laws need not be subjected to strict scrutiny review, even where such laws implicate both free exercise rights and parental rights.(fn10) Accordingly, the court affirmed the district court's order that the Anayas immediately submit their child for the requisite metabolic testing.(fn11)

This Note focuses on the narrow question of what approach to hybrid-rights claims the Nebraska Supreme Court should have used to evaluate the Anayas' claim and illustrates how the proper approach would have affected the outcome in Anaya. Part II of this Note provides a legal background for hybrid-rights claims and an explanation of Douglas County v. Anaya, including the factual background and the court's holding. In Part III, this Note demonstrates that the three mainstream lower court approaches to the hybrid-rights exception are all flawed, and that the Nebraska Supreme Court erred in failing to adopt the "genuinely-implicated" approach to hybrid-rights claims.(fn12) Part III continues by showing that the Anayas would have obtained strict scrutiny review of Nebraska's metabolic testing law had the Nebraska Supreme Court used the genuinely-implicated approach. Finally, Part IV concludes by emphasizing that the Nebraska Supreme Court's failure to use the appropriate approach to hybrid-rights claims represents an erroneous rejection of historically significant constitutional interests that, unfortunately, will likely be repeated by other courts.

II. BACKGROUND

A. The Legal Landscape of Hybrid-Rights Claims

Before engaging in a critical analysis of the approaches that courts use to determine whether the hybrid-rights exception is applicable, it is necessary to explain the legal landscape of hybrid-rights claims in general, and of free exercise and parental rights hybrids in particular. Accordingly, the following section (1) details the textual origin of the

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hybrid-rights exception, (2) introduces the various ways that lower courts have applied the exception, and (3) briefly showcases the historical underpinnings of the application of heightened scrutiny to joint free exercise and parental rights claims.

1. TheSmithGeneral Rule and the Origin of the Hybrid-Rights Exception

As stated above, Employment Division, Department of Human Resources v. Smith forced a paradigm shift in how scholars, litigants, and judges view the Free Exercise Clause.(fn13) In Smith, the Supreme Court considered whether a state criminal law prohibiting the ingestion of peyote violated the free exercise rights of Alfred Smith and Galen Black, two members of the Native American Church.(fn14) Smith and Black, who were drug counselors, were fired and subsequently denied unemployment compensation after their employer discovered that they had consumed peyote during a religious ceremony.(fn15) In rejecting Smith and Black's assertion that strict scrutiny review applied to the case, the Supreme Court held that a "neutral law of general applicability,"(fn16) like Oregon's criminal proscription of peyote, need not be justified by a compelling governmental interest.(fn17) This has been taken to mean that only rational basis review(fn18) applies to neutral and generally applicable laws that happen to incidentally burden a claimant's free exercise rights.(fn19) Under Smith's general rule, a challenge based on the Free Exercise Clause will only invoke strict scrutiny review(fn20)

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when the law in question is a seemingly intentional burden on religious interests.(fn21) Because neutrality and general applicability will only be violated by laws that fairly flagrantly discriminate against religion,(fn22) and because only naive legislatures would draft such laws,(fn23) rational basis review is likely to apply to the majority of free exercise claims.(fn24)

Immediately after articulating the Smithgeneral rule, the Court identified a narrow exception when it noted that

[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press . . . or the right[s] of parents.(fn25)

Later the Court named this exception by noting that it was not applicable inSmith itself, because the case did not "present such a hybridsituation."(fn26)

2. Applying the Hybrid-Rights Exception

Unfortunately, other than the few lines quoted above, the SmithCourt never said much else about the hybrid-rights exception. As a result, the Smith Court's explanation of the hybrid-rights exception is somewhat ambiguous, making it difficult for lower courts to under

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stand and apply.(fn27) In addition to the ambiguity inherent in the Smithhybrid-rights passage, many debate the logic behind the exception.(fn28) The controversy surrounding Smith's hybrid-rights passage has given rise to considerable disagreement among lower...