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

• Author: Michael D. Currie
• Position: J.D. Candidate, The University of Iowa College of Law
• Pages: 1363-1399

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, 2014; 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. D EVELOPMENT OF M ODERN C ONSTITUTIONAL F REE -E XERCISE J URISPRUDENCE : T HE R ISE AND F ALL OF THE SHERBERT T EST ......... 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. T HE R ELIGIOUS F REEDOM R ESTORATION A CT AND THE C URRENT S TANDARD ..................................................................................... 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 S MITH ................................ 1377 A. T EXTUAL B ASIS FOR A DOPTION OR R EJECTION 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. P RIOR P RECEDENT & 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. P UBLIC P OLICY C ONSIDERATIONS .................................................... 1385 D. O RIGINAL I NTENT .......................................................................... 1386 IV. THE IOWA SUPREME COURT SHOULD REJECT S MITH AND ADOPT A STRICT SCRUTINY STANDARD ............................................................ 1387 A. T EXTUAL B ASIS : T HE I OWA C ONSTITUTION ’ S F REE -E XERCISE P ROVISION ..................................................................................... 1387 B. D OCTRINE 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. P UBLIC P OLICY F AVORING S TRICT S CRUTINY ................................... 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. I OWA F RAMERS ’ O RIGINAL I NTENT FOR THE F REE E XERCISE OF R ELIGION ....................................................................................... 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 omitted)). 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. 1366 IOWA LAW REVIEW [Vol. 99:1363 Smith ’s rational-basis test. 7 Other state supreme courts flatly rejected Smith and interpreted their state constitution’s free-exercise provisions as providing greater individual protection for the free exercise of religion. 8 Still other states, such as Iowa, have yet to address this question. This Note argues that the Iowa Supreme Court should reject Smith ’s rational-basis standard of review and adopt the strict scrutiny standard as originally articulated in Sherbert v. Verner for free-exercise claims that arise under Iowa’s free-exercise provision, as stated in Article I, Section 3 of the Iowa Constitution. Part II of this Note begins by summarizing the history of the Supreme Court’s free-exercise jurisprudence. 9 Part II then addresses Congress’s response to Smith and the current standard of review for free-exercise claims brought under the Free Exercise Clause of the First Amendment. 10 To understand the factors state supreme courts weigh when deciding whether to adopt or reject Smith , Part III tracks the various rationales state supreme courts have employed to arrive at their conclusions. The factors considered in Part III include the textual differences or...