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When the Courts were Tripping: An Analysis of Employment Division v Smith and Its Impact on Oregon Law

I. Introduction For decades, the United States Supreme Court stood as a national defender of the free exercise of religion. In the 1960s, the Court was unflinchingly adamant that "[t]he door of the Free Exercise Clause stands tightly closed against any governmental regulation," (1) and reviewed any burden on religion through the searching inquiry of strict scrutiny. (2) However, in 1990 the Court abruptly turned its back on the Free Exercise Clause in Oregon u. Smith. (3) The Court refused to acknowledge the precedent of the 1960s and 1970s for what it was, and lowered the standard of review to mere rational basis for facially neutral, generally applicable legislation, regardless of the burden it placed on a religious entity. (4) The removal of federal protections still allows state courts to adopt the federal pre-Smith tests through the use of their state constitutions. Even by the time Smith was decided, many state courts had "rediscovered] [their] state constitutions" and were becoming more and more accustomed to the role of state courts in the system of "New Federalism" (5) in place following the Supreme Court's decision Michigan v. Long. (6) Some state courts immediately transitioned and quickly built a body of state constitutional case law providing heightened protections for free exercise. (7) Others were plunged into a state of uncertainty, and would not define the protections of religion for decades. (8) It is the purpose of this article to articulate the state of state constitutional protections for free exercise of religion after Oregon v. Smith. The focus will start on the history of religious protections federally and will analyze the underlying rationale of the federal precedent. It will then analyze the role of state courts in the federalist system and describe how other state courts have interpreted constitutional provisions that mirror the strengthened language in New York State Constitution article I, section 3. Ultimately, it is concluded that Smith should be scrutinized by state courts, legislatures, and practitioners, and that these individuals and entities can and should employ a number of methods to restore the historic level of protection for religious liberties. II. The Federal History and Traditions The history of the Supreme Court's handling of the First Amendment's Free Exercise Clause is somewhat varied, although over the years certain trends emerge. In the late nineteenth century, the Court rejected two free exercise challenges to laws that directly targeted polygamy. The cases were heard over a decade apart, with the first, Reynolds v. United States, (9) decided in 1878, and the second, Davis v. Beason, (10) decided in 1890. In both cases, a unanimous Supreme Court upheld statutes criminalizing the Mormon practice. (11) In Beason, Justice Field drew parallels between bigamy and the practices of human sacrifice and sati (widow burning). (12) The Court ultimately dispelled with the free exercise challenge stating, "[the crime of bigamy] is not the less odious because [it is] sanctioned by what any particular sect may designate as 'religion.'" (13) In the decades that followed the Mormon polygamy cases, the Court struck similar chords with regard to free exercise. In United States v. Schwimmer, (14) the Seventh Circuit Court of Appeals held against a Hungarian-born Quaker, who in her application for citizenship, claimed that she "would not take up arms personally" in defense of the United States. (15) Her application was subsequently denied, and she eventually appealed to the Supreme Court. (16) A divided Court upheld the statute, with Justice Holmes dissenting. (17) Holmes, joined by Justice Brandeis, suggested that "many citizens agree with the applicant's belief and that I had not supposed hitherto that we regretted our inability to expel them because they believe more than some of us do in the teachings of the Sermon on the Mount." (18) While glimmers of hope occasionally shone in an occasional dissent, (19) heightened protections for free exercise were not fully articulated until the mid-twentieth century. …

"Our Constitution, Our Precedents, and (Our) Own Best Human Judgments": A Survey of Free Exercise State Constitutional Interpretation in the Wake of Oregon V. Smith

Robert McIver

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"Our Constitution, Our Precedents, and (Our) Own Best Human Judgments": A Survey of Free Exercise State Constitutional Interpretation in the Wake of Oregon V. Smith