Reflections on free exercise: revisiting Rourke v. Department of Correctional Services.

• Author: Simson, Gary J.
• Position: Symposium: A Second-Class Constitutional Right? Free Exercise and the Current State of Religious Freedom in the United States

To offer a critical perspective on federal free exercise law, (1) I would like to focus in this talk on a case that I argued in the early 1990s only a few miles from the Albany Law School. At the time I was a law professor at Cornell, and I was handling the case as part of a religious liberty clinic that I co-taught for a number of years with Glenn Galbreath, an experienced and tremendously able clinical faculty member at Cornell. It was a wonderful case, and we litigated it over the course of several years, starting with a successful motion for summary judgment on the free exercise claim and concluding with a successful motion for attorney fees.

The case, Rourke v. Department of Correctional Services, (2) was decided at the trial court level in August 1993 by Justice Keegan of the New York State Supreme Court for Albany County. In granting our motion for summary judgment, Justice Keegan relied on state constitutional free exercise grounds, specifically article I, section 3 of the New York State Constitution. (3) Justice Keegan prohibited enforcement against our client, a Native American prison guard, of a state Department of Corrections hair-length policy for prison guards set forth in a state-wide directive. Our client, Raymond Rourke, adhered to the Longhouse religion, the traditional Mohawk religion. One teaching of the religion links hair length to spiritual potential: the longer one's hair, the closer one comes to the Creator; and short hair shows disrespect for the Creator and limits one's spiritual potential. The Department dismissed Mr. Rourke for abiding by his religious beliefs and refusing to cut his hair. Justice Keegan ordered Mr. Rourke reinstated with back pay, and his judgment was affirmed in June 1994 by the Appellate Division, Third Department. (4)

The case actually got a fair amount of play both in New York and outside New York. Several years after the Appellate Division's affirmance, I happened to mention to Douglas Laycock, a leading Free Exercise and Establishment Clause scholar now at the University of Michigan, (5) that I had litigated the Rourke case. I was surprised and delighted when he said "That case is famous."

The case was distinctive in a number of ways. One was the client. Mr. Rourke was truly the model client. You simply could not have a better client. He exemplified standing on principle--in this instance, religious principle. He went through quite an ordeal. Fired from his job for abiding by his religious beliefs, he, his wife, and their two children depended for their sustenance on unemployment insurance benefits. Remarkably, despite being made to suffer for adhering to his deeply felt beliefs, Mr. Rourke never took out his frustrations on his attorneys. In fact, quite the contrary. He often thanked me, Glenn Galbreath, and our students and showed appreciation for what we did. After the Appellate Division had affirmed Justice Keegan's order of reinstatement with back pay, I invited Mr. Rourke to come to Cornell Law School to speak to the student body about the case. It was an incredibly moving experience, particularly when he said aloud a prayer in gratitude for the assistance that he had received.

On a broader level, the Rourke case stands out because it helps highlight so well how problematic Employment Division v. Smith (6) is. Although Justice Scalia's majority opinion in that case did not acknowledge that it was discarding a free exercise approach that had been in place for many years, the opinion in fact turned existing free exercise law on its head. With minor exception, it abandoned the core free exercise principles (7) that (1) a law having the effect of interfering with one or more individuals' free exercise of religion may be challenged as applied and (2) a substantial burden on one or more individuals' free exercise may stand only if necessary to serve a compelling state interest. The Rourke case memorably illustrates the importance of these principles. It demonstrates how lawmakers and administrators in a system based on majority rule cannot be relied on to be sensitive to, or respectful of, the needs and beliefs of religious minorities. It also shows the great hardships that some people will endure rather than act contrary to their religious beliefs.

The Rourke case is also noteworthy because it exemplifies the importance of state constitutional law. Prior to Employment Division v. Smith, the New York courts essentially had interpreted the New York State Constitution's Free Exercise Clause no differently than the U.S. Supreme Court had interpreted the federal clause. (8) The Rourke case was the first reported decision since Smith dealing with the New York Constitution's free exercise provision. We made the argument that the New York courts should not feel obliged to cut back on the scope of the New York clause simply because the U.S. Supreme Court had decided to do so with the federal clause. We were in the interesting, and in some ways enviable, situation of telling a New York court that it just ought to keep doing what New York courts had been doing for years. Our message was relatively simple: although the Supreme Court in Smith claimed that it was not doing anything new, it obviously was; and a New York court interpreting the New York Constitution was under no obligation to follow its lead.

The Rourke case therefore provided us with a wonderful opportunity to argue that the majority's approach in Smith was fundamentally flawed. In the second panel discussion today, Professor Hesse is going to discuss Smith in detail. For the most part, I would like to leave it to him to lay bare the flaws in the Smith approach. However, Justice...