Beyond the First Amendment: Free Exercise of Religion in the States

December 02, 2011
Author: Martin Wishnatsky

Prior to 1990, only a compelling state interest implemented by the least restrictive means could justify a state law that infringed free exercise of religion.1  In Employment Division v. Smith,2  however, the Supreme Court reversed that rule, finding neutral laws of general applicability per se constitutional regardless of their impact upon religious practice.3  If this result opened the door to religious discrimination without a constitutional remedy, the Court stated, that was the price of democracy.  State courts that had routinely applied federal precedent in free exercise cases now faced a challenge. They could follow the Supreme Court in limiting protection for religious exercise, or they could find an alternative. Smith’s shrinking of federal protection for free exercise prompted states to look to their own constitutions to fill the gap.

State Constitutions to the Rescue

Prior to Smith, the Supreme Court had acknowledged that state constitutions could provide a higher degree of protection to fundamental rights than the Court recognized in the federal Constitution.5  Under this theory, as long as a state respected the minimal level of protection found in the federal Constitution, it was free to go beyond that minimum and provide greater protection in its state constitution.6  In the wake of Smith, a number of states embraced this alternative.

State constitutions predate the federal constitution.7  They typically have richer language protecting religious freedom than found in the First Amendment. The Minnesota Constitution, for instance, states affirmatively that the “right of every man to worship God according to the dictates of his own conscience shall never be infringed.”8  After Smith, the Minnesota Supreme Court found revitalized protection for free exercise of religion in its state constitution. Noting that the state constitutional language “is of a distinctively stronger character than the federal counterpart,” the Court concluded that government action satisfying the First Amendment might “nonetheless infringe on or interfere with” religious practice protected by the Minnesota Constitution.9  Similarly, the Washington Supreme Court post-Smith held that the religious freedom language of its state constitution was “significantly different and stronger than the federal constitution.”10  Because Smith “departs from a long history of established law and adopts a test that places free exercise in a subordinate, instead of preferred position,” the Court turned to the robust language of the Washington Constitution to remedy the defect.11  Other states have done the same, relying on state constitutional provisions to restore strict scrutiny to free exercise claims.12


The retraction of federal rights wrought by Smith brought into relief the independent capabilities of state constitutions formerly hidden in the shadow of heightened federal protection. When the Supreme Court weakens Constitutional protection for fundamental rights, the states can find a remedy in their own constitutions.13



1 See Sherbert v. Verner, 374 U.S. 398, 403 (1963) (only a compelling state interest can justify burdening free exercise of religion); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (“only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion”).
2 494 U.S. 872 (1990).
3 Id. at 876-885.
4 Id. at 890 (“leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in”).
5 A state may exercise “its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 (1980). See also City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293 (1982) (recognizing that a state “is entirely free to read its own State’s constitution more broadly than this court reads the Federal Constitution”); Cooper v. California, 386 U.S. 58, 62 (1967) (acknowledging “State’s power to impose higher standards . . . than required by the Federal Constitution if it chooses to do so”).
6 See, e.g., Buckman v. Montana Deaconess Hosp., 730 P.2d 380, 384 (Mont. 1986) (noting that “federal constitution establishes the floor and not the apex of constitutional rights”).
7 See Hans A. Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. BALT. L. REV. 379, 383 (1980) (stating that “rights under the state constitutions were first in time”).
8 MINN. CONST. art. I, § 16. See similarly WASH. CONST. art. I, § 11 (“Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual . . . .”).
9 State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990). See also State by Cooper v. French, 460 N.W.2d 2, 8-9 (Minn. 1990) (plurality opinion) (analyzing free exercise claim under Minnesota Constitution in light of  “unforeseeable changes in established first amendment law set forth in recent decisions of the United States Supreme Court”).
10 First Covenant Church v. Seattle, 840 P.2d 174, 186 (Wash. 1992). See WASH. CONST. art. I, § 11 (“Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual . . . .”).
11 First Covenant Church v. Seattle, 840 P.2d at 187.
12 Swanner v. Anchorage Equal Rights Com'n, 874 P.2d 274, 280-81 (Alaska 1994) (stating that “we are not required to adopt and apply the Smith test to religious exemption cases involving the Alaska Constitution”); Attorney General v. Desilets, 636 N.E.2d 233, 236 (Mass. 1994) (adhering to the standards of pre-Smith First Amendment jurisprudence); State v. Miller, 549 N.W.2d 235 (Wis. 1996) (retaining “compelling state interest/least restrictive alternative test for free exercise under Wisconsin Constitution).
13 This capability can be a two-edged sword. A number of state courts have discovered abortion protection in their state constitutions. See generally PAUL LINTON, ABORTION UNDER STATE CONSTITUTIONS (2005).