The Erosion of Nebraska's Free Exercise Protection: in Re Interest of Anaya (anaya Ii), 276 Neb. 825, 758 N.w.2d 10 (2008)

• Publication year: 2021

89 Nebraska L. Rev.159. The Erosion of Nebraska's Free Exercise Protection: In re Interest of Anaya (Anaya II), 276 Neb. 825, 758 N.W.2d 10 (2008)

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Note(fn*)

The Erosion of Nebraska's Free Exercise Protection: In re Interest of Anaya (Anaya II), 276 Neb. 825, 758 N.W.2d 10 (2008)

TABLE OF CONTENTS

I. Introduction.......................................... 160

II. Background........................................... 162
A.The Federal and Nebraska Free Exercise Provisions......................................... 162
B.The Development of the Compelling Interest Test ............. 162
1.The United States Supreme Court: Sherbert and Yoder .........................................162
2.The Nebraska Supreme Court: LeDoux.........163
C.Federal Departure from Free Exercise Precedent...164
D.The Religious Freedom Restoration Act ............166
E.Interpreting Nebraska's Free Exercise Provision: Palmer ............................................166
F.The End of the Compelling Interest Test for First Amendment Free Exercise .........................167
G.In re Interest of Anaya (Anaya II)..................168
1.Facts and Procedural History.................. 168
2.Holding and Rationale......................... 169

III. Analysis .............................................. 170
A.By Allowing the U.S. Supreme Court to Determine the Meaning of Nebraska's Free Exercise Provision, the Nebraska Supreme Court Has Disenfranchised the People of Nebraska............................ 170
B.The U.S. Supreme Court's Invalidation of RFRA Should Not Affect Nebraska's Standard ............ 173
C.The Use of the Rational Basis Test Robs Section Four of Any Real Power to Protect Free Exercise... 175
D.Concerns about the Compelling Interest Test Are Unfounded........................................ 178

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IV. Conclusion............................................ 182

I. INTRODUCTION

Assume, for a moment, that Nebraska enacted a law requiring state employees, without any exceptions, to work on Saturdays in order to provide better access to government services. Although the law's purpose is entirely secular, a government employee whose religion dictates a Saturday Sabbath on which she may not work must choose between violating her religious beliefs and losing her job. What can she do?

She might think that a constitutional right to free exercise of religion guarantees her right to abstain from working on the Sabbath. However, neither the federal nor Nebraska constitutions' free exercise provisions provide any remedy because the law is neutral and generally applicable-it is not directed at religious practices and does not allow any exceptions-and a court would likely consider it to be rationally related to a legitimate government purpose.(fn1) Thus, unprotected by either the federal or state constitutions, the government employee faces a difficult choice.

Though the United States Supreme Court has interpreted the U.S. Constitution's First Amendment as requiring only a rational basis test for neutral, generally applicable laws since it decided Employment Division, Department of Human Resources v. Smith in 1990,(fn2) only recently was the Nebraska Constitution's free exercise provision interpreted in similar fashion. After the Nebraska Supreme Court's holding in In re Interest of Anaya ("Anaya IT') in December of 2008,(fn3) an individual whose religious liberty is burdened by a neutral, generally applicable law has no recourse under the Nebraska Constitution, no matter how extreme the burden is.(fn4)

The plaintiffs in Anaya II challenged the state's newborn screening statutes(fn5) under the free exercise provision of article I, section four of

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the Nebraska Constitution (hereinafter "Section Four"),(fn6) claiming that drawing blood from their infant under the newborn screening statutes violated their sincerely held religious beliefs.(fn7) In so arguing, they cited Palmer v. Palmer, in which the Nebraska Supreme Court held that the compelling interest test applied to Section Four claims.(fn8) The court in Anaya II rejected this argument, holding that Palmer's adoption of the compelling interest test depended on a no longer valid federal law.(fn9) Though the court acknowledged that the state and federal provisions contained different language, it refused to analyze the Nebraska provision's text or history.(fn10) The court then held that Nebraska's Section Four protected free exercise only as much as the Federal First Amendment because they protected similar rights.(fn11) Since, under Smith, the First Amendment's Free Exercise Clause requires only a rational basis test for neutral laws of general applicability, the court reasoned that the Nebraska provision does as well.(fn12)

Anaya II will have wide-ranging effects on the status of religious freedom in Nebraska. Part II of this Note discusses the development of federal and Nebraska free exercise jurisprudence, concluding with the Anaya II decision. Following this background information, Part III examines the effects of the Nebraska Supreme Court's adoption of the rational basis test for neutral, generally applicable laws that incidentally burden religious practice. Part Iv concludes with the recommendation that the Nebraska Legislature adopt a statute reestablishing the compelling interest test for all Section Four free exercise claims.

The Nebraska Supreme Court's adoption of the rational basis test in Anaya II was a dangerous mistake. First, by tying the meaning of Section Four to the U.S. Supreme Court's interpretations of the First Amendment, the Nebraska Supreme Court has effectively allowed the U.S. Supreme Court to amend the Nebraska Constitution without the consent of Nebraska's citizens. This is at odds with both the text and the history of the Nebraska Constitution. In addition, the use of the rational basis test results in a lack of any real protection of religious

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practice-neutral, generally applicable laws can burden religious freedom just as much as laws targeted at religion, and religious minorities' free exercise rights are now subject to the political process. For these reasons, the Nebraska Supreme Court's refusal to apply the compelling interest test, which it applied in Palmer to Section Four free exercise claims arising from neutral, generally applicable laws,(fn13) is a mistake that severely limits the protection of religious exercise under the Nebraska Constitution.

II. BACKGROUND

A.The Federal and Nebraska Free Exercise Provisions

The First Amendment of the United States Constitution provides, in relevant part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... ."(fn14) In contrast, article I, section four of the Nebraska Constitution states: "

No person shall be compelled to attend, erect or support any place of worship against his consent, and no preference shall be given by law to any religious society, nor shall any interference with the rights of conscience be permitted.(fn15)

Judicial interpretations of these two provisions have changed significantly over the past fifty years.

B.The Development of the Compelling Interest Test

1. The United States Supreme Court: Sherbert and Yoder

The United States Supreme Court began its thirty-seven year use of the compelling interest test for First Amendment free exercise claims in Sherbert v. Verner.(fn16) South Carolina's unemployment benefits office denied unemployment benefits to the plaintiff in Sherbert because she refused to accept a position that required her to work on Saturdays, which Seventh Day Adventists recognize as the Sabbath.(fn17) The Court found that, by forcing the plaintiff to choose between her religious beliefs and obtaining unemployment benefits, the state burdened her religious exercise in the same way as if it had fined her for her Saturday worship.(fn18) The Court announced that even incidental burdens on an individual's religious exercise must be justified by a compelling governmental interest.(fn19)

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The Court again addressed free exercise in Wisconsin v. Yoder.(fn20) A Wisconsin law required all children under sixteen years old, with limited exceptions, to attend school.(fn21) The plaintiffs in Yoder were under sixteen, but their parents had stopped sending them to school because formal education beyond eighth grade conflicted with their religious beliefs.(fn22) The parents instead wished to informally educate their children in values and skills central to the Amish way of life.(fn23) As in Sherbert, the Court stated that a law may only interfere with a genuine religious practice if it serves a compelling state interest.(fn24) It noted that even a facially neutral law, such as the compulsory school attendance law, may violate the First Amendment if it "unduly burdens" religious exercise.(fn25) The Court ultimately concluded that the government had not shown a sufficiently compelling interest to justify burdening the plaintiffs' religious freedom.(fn26)

2. The Nebraska Supreme Court: LeDoux

The Nebraska Supreme Court first applied the compelling interest test to a federal First Amendment claim in LeDoux v. LeDoux.(fn27) Le-Doux concerned a divorce decree that ordered a Jehovah's Witness convert not to expose his son to religious beliefs and practices at odds with Catholicism.(fn28) The restrictions were based on testimony that the father's...