Readdressing Nebraska's Misinterpreted Conscience Clause

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 890. Readdressing Nebraska's Misinterpreted Conscience Clause

Comment*

Readdressing Nebraska's Misinterpreted Conscience Clause

Brenna M. Grasz

TABLE OF CONTENTS

I. Introduction .......................................... 891

II. Background ........................................... 892
A. The Federal Free Exercise Clause: What It Means and What It Protects .............................. 892
B. Nebraska's Conscience Clause Language ........... 894
C. Early States' References to Conscience ............. 896
D. Federal Free Exercise Jurisprudence ............... 897
E. Current Conscience Rights Protection in Nebraska . 900

III. Analysis .............................................. 901
A. Rules of Constitutional Interpretation ............. 901
1. The Conscience Clause Rendered Meaningless and Surplusage ................................ 903
2. Interpretation According to the Original Meaning and Purpose .......................... 906
a. The History of Religion in Nebraska ........ 906
b. Perfect Toleration of Religion ............... 907
c. The Intent of Nebraska's Framers and Citizens ................................... 909
d. Other States' Conscience Provisions ........ 911
B. Conscience Rights in a Constitutional Republic . . . . 916
1. State Autonomy ............................... 916
2. Nebraska's Constitutional Amendment Process . 919
3. A Second Avenue for Recovery ................. 921

IV. Conclusion ............................................ 922

1

I. INTRODUCTION

In 1990, the U.S. Supreme Court decided Employment Division, Department of Human Resources v. Smith,(fn1) a Free Exercise Clause case that radically shifted religious exercise jurisprudence in America. Prior to Smith, the Court applied the compelling interest test to all Free Exercise claims, requiring courts to apply strict scrutiny to any undue burden placed on free exercise.(fn2) But the Court deviated from this standard when it held that neutral and generally applicable laws do not trigger Free Exercise Clause protections.(fn3) As a result, plaintiffs began shifting their attention to states' religion provisions in an effort to seek greater protections under state constitutions.

Article 1 section 4 of the Nebraska constitution (the Conscience Clause)(fn4) secures the rights of conscience for Nebraska citizens.(fn5) However, while many states have chosen to apply a high level of constitutional scrutiny to their state constitutions' conscience clauses, the Nebraska Supreme Court chose to do the opposite-instead applying the federal Constitution's Smith standard to Nebraska's Conscience Clause.(fn6) In doing so, the court declined to examine the textual and historical differences between the state provision and its federal counterpart.(fn7)

More than a decade has passed since the Nebraska Supreme Court last addressed the purpose and meaning of its state constitution's Conscience Clause. This Comment examines the Nebraska Supreme Court's erroneous application of the Smith standard to Nebraska's Conscience Clause and the need for the court to readdress and appropriately analyze the provision's meaning and purpose. Part II examines the text of the Free Exercise Clause and its meaning, Nebraska's Conscience Clause, and the proper understanding of "conscience." Part II also tracks the history of federal and Nebraska religious exercise jurisprudence-including the Free Exercise Clause standards

2

that have changed over time-while focusing on the Smith standard, Nebraska's application of this standard, and other states' responses to shifting standards in federal jurisprudence.

Part III argues that the Nebraska Supreme Court's decision to apply the Smith standard to its Conscience Clause was incorrect in two aspects. First, the court failed to properly interpret the Conscience Clause-ignoring its own rules of construction which call for an independent analysis of the provision's text to determine its original meaning. Second, the court engaged in judicial overreach when it applied the meaning of a federal provision to its textually distinct state provision. This overreach undermined the State's autonomous right to interpret its unique state constitution independently from the federal Constitution. Summarily, the Nebraska Supreme Court errantly stripped conscience rights protections from the Nebraska Conscience Clause over ten years ago. It is time for the court to readdress the clause's language, return the Conscience Clause to its original meaning, and restore religious liberty protections in Nebraska.

II. BACKGROUND

A. The Federal Free Exercise Clause: What It Means and What It Protects

The Free Exercise Clause of the First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."(fn8) The text of the Free Exercise Clause does not define religious exercise in detail,(fn9) but the federal provision is more clearly understood when viewed in light of its general intent and structure.

First, the language as a whole was intended to establish the framework for permissible government action affecting the enumerated right of free exercise at both the state and federal level.(fn10) Rather than defining free exercise in detail, the framers used broad, umbrella-like language. This was the U.S. Constitution's framers' intention.(fn11) By

3

using the term "free exercise," these framers sought to encapsulate various forms of religious exercise in one phrase.(fn12)

Second, the Free Exercise Clause forbids Congress from prohibiting free exercise. Early drafts of the Free Exercise Clause included alternative words like "infringe," "compel," and "violate," yet these words were replaced with the single word, "prohibit."(fn13) This prohibition is a direct restraint on Congress. Congress, as part of the new federal government,(fn14) lacked constitutional authority to enact laws forbidding individuals from exercising their religion.(fn15) The framers of the Free Exercise Clause included this restraint on Congress because of their belief that a person's religious exercise should be outside the scope of the federal government's power.(fn16) Because religious convictions were believed to take "precedent[,] both in order of time and in degree of obligation, to the claims of Civil Society,"(fn17) the Constitution's framers wanted to ensure that individuals were not compelled to choose "between obedience to religious duties and obedience to civil laws."(fn18)

Third, and most notably, the Free Exercise Clause does not include a conscience provision.(fn19) States proposed various drafts for what became the Free Exercise Clause, many of which included reference to

4

rights of conscience.(fn20) This conscience language was incorporated in a proposed draft of what became the Free Exercise Clause, stating in part, "nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed."(fn21) This conscience language proposal, along with nineteen other drafts, was rejected from the ultimate language of the Free Exercise Clause.(fn22)

B. Nebraska's Conscience Clause Language

In contrast to the drafters of the federal Constitution, Nebraska's framers included a right of conscience provision in their state constitution.(fn23) Article 1 section 4 of the Nebraska constitution states in pertinent part, "All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. . . . [N]or shall any interference with the rights of conscience be permitted."(fn24)

The Conscience Clause's explicit protection of the natural rights of conscience is distinctly different from the First Amendment's Free Exercise Clause. The term "conscience" dates back over two millennia, originating in Roman and biblical times.(fn25) References to conscience can be found in canonical, common, and civil law.(fn26) Further, before the federal Constitution's framers referenced conscience in Free Exercise Clause drafts, early colonies recognized the rights of conscience in their state constitutions.(fn27) This conscience right, as understood by the

5

early states, is rooted in natural law.(fn28) Under Natural Law Theory, the "natural and indefeasible" right of conscience in the Conscience Clause is a right naturally possessed by every human being.(fn29) Natural rights are not granted by government; rather, they are inherently possessed by every human being, regardless of whether the government chooses to recognize them.(fn30)

Nearly a century after the earliest states declared conscience as a natural right, Nebraskans included this affirmation in their Conscience Clause.(fn31) Nebraska's constitution as a whole,(fn32) and specifically its Conscience Clause, reflects this principle that freedom of conscience is a natural and indefeasible right-a right that precedes enumeration in the Conscience Clause.(fn33) The drafters of the Conscience Clause thus recognized that the right of conscience is not subject to the control of any human government.(fn34) The Conscience Clause's use of the term "indefeasible" reinforces its derivation from natural law. The term is synonymous with how early political philosophers defined conscience as an "inalienable right"-an inherent right

6

that cannot be taken away by the government.(fn35) This freedom is...