VIII. State Constitutional Claims

• Library: Litigating Religious Land Use Cases (ABA) (2016 Ed.)

VIII. State Constitutional Claims

Every state has a constitutional provision protecting the individual rights of those seeking to freely worship, restricting state and local governments from limiting those rights.⁴⁶³ Most are much more detailed than the First Amendment and many states' constitutional provisions dealing with religion developed over time, largely in response to specific conflicts.⁴⁶⁴ In many instances, the state provisions also reveal a different perspective on the relationship between church and state than is found in the First Amendment Free Exercise Clause.⁴⁶⁵ Most scholars agree that the state constitutional free exercise provisions served as important models in the drafting and consideration of the First Amendment Free Exercise Clause.⁴⁶⁶

After the U.S. Supreme Court released its decision in Employment Division v. Smith,⁴⁶⁷ many commentators concluded that a claimant in a free exercise claim should look to its state constitutional free exercise clause for relief. These commentators are in agreement that "[a]t the moment plaintiffs have a far better chance of success with the state constitutions than with the federal."⁴⁶⁸ Because courts treat religious exercise rights in the federal and many state constitutionals consubstantially, they further concluded that "[s]ome state courts will do no better than the federal courts, but some will do much better."⁴⁶⁹

The text of state constitutional religion provisions is often substantially different from the more familiar First Amendment. Consider the following three state constitutional free exercise clauses. In Michigan, for example, the state constitution provides the following:

Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.⁴⁷⁰

The state of Mississippi provides for several related items within its constitution. The Mississippi Bill of Rights provides for the following:

No religious test as a qualification for office shall be required; and no preference shall be given by law to any religious sect or mode of worship; but the free enjoyment of all religious sentiments and the different modes of worship shall be held sacred. The rights hereby secured shall not be construed to justify acts of licentiousness injurious to morals or dangerous to the peace and safety of the state, or to exclude the Holy Bible from use in any public school of this state.⁴⁷¹

Perhaps the most complete free exercise clause is set forth in the Washington state constitution. The text of the Washington state constitution has been amended several times since its inception. The original clause provided as follows:

Absolute freedom of conscience in all matters of religious sentiment, belief, and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person, or property, on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for, or applied to any religious worship, exercise or instruction, or the support of any religious establishment. No religious qualification shall be required for any public office, or employment, nor shall any person be incompetent as a witness, or juror, in consequence of his opinion on matters of religion, nor be questioned in any court of justice touching his religious belief to affect the weight of his testimony.⁴⁷²

The state then amended its free exercise clause in 1904 to provide as follows:

Amendment 4 (1904)—Art. 1 Section 11 RELIGIOUS FREEDOM— Absolute freedom of conscience in all matters of

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