MOVING FROM THE STATEHOUSES TO THE STATE COURTS? THE POST-RFRA FUTURE OF STATE RELIGIOUS FREEDOM PROTECTIONS.

Author:Baumgardner, Paul
 
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Over the past several years, the national government has taken significant action in the area of religious freedom. President Trump has issued executive orders outlining new conscience protections and enforcement policies, the U.S. Supreme Court has wrestled with the limits of religious freedom in the workplace and in the coordination of healthcare, and Republican legislators have repeatedly pushed for the passage of the First Amendment Defense Act. (1) However, many of the most heated and controversial developments over religious freedom have occurred at the state level. (2)

Since the mid-1990s, many state legislatures across the United States have sought to pass new religious freedom protections, commonly known as Religious Freedom Restoration Acts ("RFRAs"). (3) Although initially popular, these legislative attempts have become extremely divisive in recent years. (4) In this Article, we explain the growing debates surrounding state RFRAs, with a special focus on the ways in which state legislatures may sidestep these landmines.

Political scientists have outlined multiple instances in which federal courts have assumed responsibility for setting policy when Congress and the President have been unable or unwilling to act. (5) This brand of judicial policymaking is especially common when there is significant partisan disagreement or a threat of public backlash. (6) This Article argues that a similar phenomenon also occurs within state-level institutions. For example, recent religious freedom disputes within Iowa have displayed the virtues of empowered state courts taking the lead in addressing controversial religious freedom claims. (7)

In this Article, we illustrate how approaching religious freedom claims through the judicial branch can help states avoid the dangers of RFRA legislative fights, while ensuring that religious protections are balanced against competing rights claims and vital state duties. In true common law fashion, state judges have exhibited the ability to slowly sculpt a jurisprudence that is both protective of our basic freedoms and also responsive to the needs of local communities.

In Part I, we offer a brief description of how state protections for religious freedom operated throughout much of the twentieth century. Part II outlines the changing religious freedom landscape following the U.S. Supreme Court ruling in Employment Division v. Smith (8) Part III charts the development of state RFRAs over the past two decades. In Part IV, we evaluate the most recent failed RFRA proposal in Iowa. Part V provides a detailed history of the religious freedom jurisprudence of the Iowa Supreme Court. We find that the state courts have showcased flexibility and pragmatism in safeguarding Iowans' religious exercise, without directly relying on the RFRA tradition. (9) In Part VI, we conclude that Iowa's experiences serve as a valuable model for other states that are looking for ways to protect religious freedom without getting bogged down in state legislative battles.

  1. STATES PROTECTIONS BEFORE THE 1990S

    For most of the nineteenth century, the Bill of Rights within the United States Constitution only constrained the actions of the federal government, meaning that citizens derived many of their political rights and duties from their local and state laws. (10) Accordingly, most legal controversies concerning religious exercise that arose during the eighteenth and nineteenth century were adjudicated at the state level. (11) However, federal constitutional law underwent a dramatic shift in focus in the twentieth century, as judges came to place greater emphasis on individual rights against national, state, and local governmental encroachment. (12)

    At the core of this program to better guard constitutionally enumerated individual rights was the doctrine of incorporation. (13) Across the twentieth century, the federal courts expanded the doctrine of incorporation, which held that the Fourteenth Amendment of the United States Constitution 'incorporates' the rights found in the Bill of Rights against intrusion from national and state governments. (14) Many of the First Amendment freedoms were incorporated between the 1920s and the 1940s. (15) This included citizens' right to freely exercise their religion, which the U.S. Supreme Court incorporated in the 1940 case of Cantwell v. Connecticut. (16)

    Although the Supreme Court's decision in Cantwell established the minimum threshold of governmental protection for religious exercise, the states retained a sizable amount of latitude in determining citizens' freedom. (17) States could not under-protect their citizens' free exercise rights by offering less security than what was provided by the Free Exercise Clause of the U.S. Constitution, but states were free to provide additional safeguards for citizens. (18) Years before the Cantwell decision, U.S. Supreme Court Justice Louis Brandeis wrote: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (19) These experiments certainly include the provision of additional safeguards for individual rights. In the words of a later U.S. Supreme Court Justice, "state experimentation cannot be excoriated simply because the experiments provide more rather than less protection for civil liberties and individual rights. While the Fourteenth Amendment does not permit a state to fall below a common national standard, above this level, our federalism permits diversity." (20)

    From the time of Cantwell until 1990, a great variety of religious protections existed on the books across the states. (21) From coast to coast, the language of state constitutions and local statutes meaningfully differed (and also diverged from federal constitutional law). (22) Some state texts directly referenced God and the importance of faithfulness, while others included prescriptions and proscriptions ranging in topic from coercion to public education to financial aid. (23) These heterogeneous laws appeared to demonstrate the states' capacities to function as creative and unique laboratories of democracy, at least concerning the topic of religious freedom.

    However, although a broad array of local religious protections existed, many states failed to operationalize and develop these added safeguards. (24) For more than two decades after Cantwell, states "were consistently unwilling to recognize religious exercise claims made under the state constitutions," expecting "only that limits on religion be minimally rational, meet due process requirements, and not contain unnecessary, unfair, unreasonable, or discriminatory standards." (25) Only after 1963, when the U.S. Supreme Court shifted its interpretation of the Free Exercise Clause and set a new judicial standard for the evaluation of religious freedom claims, did states supply more robust protections for religious believers. (26) By tracking federal constitutional law so closely, many states failed to put their laboratories to good use following Cantwell. (27) As a result, "no one cared much about the development of free exercise jurisprudence under the state constitutions." (28)

  2. EMPLOYMENT DIVISION V. SMITH AND THE NATIONAL RFRA

    Federal constitutional law, however, furnished uneven safeguards for religious adherents and institutions during the second half of the twentieth century. (29) U.S. Supreme Court decisions in Sherbert v. Verner and Wisconsin v. Yoder (30) supplied expansive constitutional protections for religious citizens, even when those citizens wanted exemptions from generally applicable laws. (31) According to the Sherbert standard enshrined by the high court, if any government policy imposed a substantial burden on religious exercise, the government was required to demonstrate (1) that the burden was necessary in order to achieve a compelling state interest, and (2) that the government had used the least restrictive means in pursuing its compelling interest. (32) Otherwise, the substantial burden on religious exercise constituted an infringement of citizens' First Amendment rights. (33)

    For more than two decades, state and federal courts relied on the Sherbert standard to address constitutional free exercise cases. (34) However, by the late 1980s the U.S. Supreme Court began moving away from this standard. (35) In 1990, the Court narrowed the applicability of the Sherbert standard and created a new approach to constitutional disputes over religious exercise. (36) The approach developed in Employment Division v. Smith imposed a higher burden on religious claimants and was more deferential to government regulation of religion. (37) Additionally, according to the majority in Smith, citizens have no constitutional right to be exempted from neutral and generally applicable laws. (38)

    The Court's decision in Smith generated a significant amount of public consternation. (39) One legal commentator recalls, "God may not have died in 1990, but from the uproar in the legal community that year, His chances of survival in the American polity appeared rather slim." (40) A large and bipartisan coalition quickly formed to push Congress to pass legislation that would better protect Americans' religious freedom. (41) One especially diverse interest group, the "Coalition for the Free Exercise of Religion," consisted of 66 different organizations, including the ACLU, the Southern Baptist Convention, the American Humanist Association, and the Christian Legal Society. (42)

    Congress responded with the enactment of the Religious Freedom Restoration Act in 1993. (43) RFRA passed the U.S. House of Representatives unanimously and was approved by the U.S. Senate in a 97-3 vote. (44) Signed into law by President Clinton, this federal statute restored the substantial burden/compelling interest standard that the U.S. Supreme Court first...

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