Scrutiny Mutiny: Why the Iowa Supreme Court Should Reject Employment Division v. Smith and Adopt a Strict Scrutiny Standard for Free-Exercise Claims Arising Under the Iowa Constitution

AuthorMichael D. Currie
PositionJ.D. Candidate, The University of Iowa College of Law
Pages1363-1399
1363
Scrutiny Mutiny: Why the Iowa Supreme
Court Should Reject Employment Division v.
Smith and Adopt a Strict Scrutiny Standard
for Free-Exercise Claims Arising Under
the Iowa Constitution
Michael D. Currie
ABSTRACT: In 1990, the United States Supreme Court decided
Employment Division v. Smith. The Smith decision dismantled the
Supreme Court’s prior free-exercise jurisprudence that applied a
“compelling state interest” strict scrutiny standard of review to facially
neutral, generally applicable laws that allegedly interfered with a
plaintiff’s free-exercise rights by replacing it with a rational-basis test. As
a result of Smith, free-exercise plaintiffs—fearing their chance of success
under the First Amendment to be dismal—began bringing their claims
under the free-exercise provisions of their state constitutions as well as
the Free Exercise Clause of the First Amendment. Since most state
constitutional free-exercise provisions had never been interpreted by their
respective supreme courts, state supreme courts have broad discretion in
deciding what standard of scrutiny to apply. Consequently, some state
supreme courts restored the “compelling state interest” standard for free-
exercise claims brought under their state constitutions. This provides
citizens of these states with greater individual protection of religious
liberty than what is currently available under the First Amendment.
Iowa has yet to take a position on this issue. Through the evaluation of
the Iowa Constitution’s textual similarities to the Free Exercise Clause,
the doctrine of stare decisis, the public policy favoring individual
religious rights, and the original intent of Iowa’s framers, this Note
explains why the Iowa Supreme Court should adopt a strict scrutiny
standard under Article 1, Section 3 of the Iowa Constitution.
J.D. Candidate, The University of Iowa College of Law, 2 014; B.A., The University of
Iowa, 2010. I would like to thank the student writers and editors of Volume 99 of the Iowa Law
Review for their work on this Note; especially to my editor Brianna Gates for her patience and
deft editing hand from which this Note benefited tremendously. Additionally, I thank attorneys
Frank Harty and Ryan Koopmans of the Nyemaster Law Firm for piquing my interest in this
topic. Lastly, I thank my incredible parents for their unwavering love and support, in spite of
having me as their son.
1364 IOWA LAW REVIEW [Vol. 99:1363
I. INTRODUCTION ................................................................................... 1365
II. BACKGROUND ...................................................................................... 1366
A. DEVELOPMENT OF MODERN CONSTITUTIONAL FREE-EXERCISE
JURISPRUDENCE: THE RISE AND FALL OF THE SHERBERT TEST ......... 1367
1. Pre-Sherbert Interpretation of the Free Exercise Clause ..... 1367
2. The Sherbert Test for Analyzing Free-Exercise Claims ........ 1369
3. Weakening of the Sherbert Test ............................................ 1371
4. Rejection of Sherbert: Smith’s Rational-Basis Test ................ 1372
B. THE RELIGIOUS FREEDOM RESTORATION ACT AND THE CURRENT
STANDARD ..................................................................................... 1374
1. A Limited Response to Smith: The Religious Freedom
Restoration Act ..................................................................... 1375
2. The Current Standard for Free-Exercise Claims Under
the Free Exercise Clause ...................................................... 1376
III. STATE SUPREME COURTS REACTIONS TO SMITH ................................ 1377
A. TEXTUAL BASIS FOR ADOPTION OR REJECTION OF SMITH ................. 1378
1. States Using Textual Differences in Adopting Strict
Scrutiny ................................................................................. 1379
2. States Ignoring Textual Differences in Adopting
Rational Basis ........................................................................ 1380
3. States Ignoring Textual Similarities in Adopting Strict
Scrutiny ................................................................................. 1382
B. PRIOR PRECEDENT & STARE DECISIS ............................................. 1382
1. States Relying on Stare Decisis in Adopting Strict Scrutiny 1383
2. States Ignoring Stare Decisis in Adopting Rational Basis .... 1384
C. PUBLIC POLICY CONSIDERATIONS .................................................... 1385
D. ORIGINAL INTENT .......................................................................... 1386
IV. THE IOWA SUPREME COURT SHOULD REJECT SMITH AND ADOPT
A STRICT SCRUTINY STANDARD ............................................................ 1387
A. TEXTUAL BASIS: THE IOWA CONSTITUTIONS FREE-EXERCISE
PROVISION ..................................................................................... 1387
B. DOCTRINE OF STARE DECISIS ......................................................... 1389
1. Stare Decisis Does Not Bar Adoption of Strict Scrutiny....... 1389
2. Iowa’s Legal Tradition Supports Greater Protection for
Individual Religious Liberty ................................................ 1390
C. PUBLIC POLICY FAVORING STRICT SCRUTINY ................................... 1392
1. Free Exercise of Religion as a Fundamental Right ............ 1392
2. Weakness of Rational-Basis Review ..................................... 1393
3. Protection of Minority Religions ......................................... 1394
2014] SCRUTINY MUTINY 1365
D. IOWA FRAMERS ORIGINAL INTENT FOR THE FREE EXERCISE OF
RELIGION ....................................................................................... 1395
1. Constitutional Convention of 1844 .................................... 1396
2. Constitutional Convention of 1857 .................................... 1397
V. CONCLUSION ....................................................................................... 1399
I. INTRODUCTION
The First Amendment to the United States Constitution provides in part
that “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.1 The framers used this absolute language in
proclaiming a citizen’s right to religious liberty because the Free Exercise
Clause was intended to secure for the people a government that could not
interfere with an individual’s ability to practice his or her religion.2 For
decades, the United States Supreme Court was stalwart in its protection of
individual religious liberty against laws that interfered with the “free exercise
thereof,” unless the government could show the infringing law was necessary
to accomplish a “compelling state interest.”3 In 1990, however, this enduring
shield of protection was displaced when the United States Supreme Court
decided Employment Division v. Smith.4 In Smith, the Court departed from
analyzing generally applicable, facially neutral laws that allegedly infringed
on an individual’s ability to practice his or her religion under strict scrutiny
by replacing the analysis with a rational-basis test.5
As a result, the Smith decision infuriated a significant portion of the
American public.6 Reactions from state supreme courts, however, were
mixed. Some state supreme courts, when analyzing free-exercise claims
brought under their state constitution’s free-exercise provisions, adopted
1. U.S. CONST. amend. I (emphasis added).
2. See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of
Religion, 103 HARV. L. REV. 1409, 1443 (1990) (describing the framers decision to use the
words “free exercise” over “toleration” of religious freedom, because the former was broader
and more encompassing than the latter).
3. See infra note 27 and accompanying text.
4. Emp’t Div. v. Smith, 494 U.S. 872 (1990).
5. See id. at 885 (“We conclude today that the sounder approach, and the approach in
accord with the vast majority of our precedents, is to hold the test inapplicable to such
challenges. The government’s ability to enforce generally applicable prohibitions of socially
harmful conduct . . . cannot depend on measuring the effects of a governmental action on a
religious objector’s spiritual development.” (internal quotation marks om itted)). Rational-basis
review is the standard of review applied by appellate courts to rights that are least-deserving of
protection from government interference. Alternatively, rights that are deemed “fundamental”
are granted strict scrutiny—a standard of review that demands the government show a
“compelling state interest” in order to interfere with such rights. See ERWIN CHEMERINSKY,
CONSTITUTIONAL LAW 946–47 (3d. ed. 2009).
6. See infra notes 64–67 and accompanying text.

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