City of Boerne v. Flores: Religious Free Exercise Pays a High Price for the Supreme Court (original) (raw)
Related papers
Journal of Catholic Legal Studies, 2009
This article examines one positive result of the Smith decision, namely the rebirth of state constitutional free exercise jurisprudence, which had atrophied in the decades prior to the 1990 decision. Surveying high court case law from several states in the wake of Smith, the author asks whether state constitutions will afford protection to religious believers and others motivated by conscience at a time when religious freedom and rights of conscience are under pressure from those asserting competing "rights" of more recent vintage, such as "reproductive rights" and rights based on "sexual orientation." The author concludes that state constitutional free exercise clauses, especially those worded differently from that found in the federal constitution, may indeed afford greater protection, though how much protection remains to be seen as new rights jostle with those religious and conscience rights that pre-date the Republic for supremacy.
1992
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. Declaration of Independence (1776)1 The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. James Madison, Memorial and Remonstrance (1785)2 1. THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776). 2. James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in Everson v. Board of Educ., 330 U.S. 1, 28 app. at 63 (1947) (Rutledge, J., dissenting). 3. See THE DECLARATION OF INDEPENDENCE (U.S. 1776). 4. The First Amendment to the United States Constitution provides that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .... U.S. CONST. amend. I. In Cantwell v. Connecticut, 310 U.S. 296 (1940), the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment extended the protections of the Free Exercise Clause to the states. Id. at 303; see also infra notes 71-72 and accompanying text. 5. 494 U.S. 872 (1990).-In his dissent, Justice Blackmun lamented that the Smith II decision "effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences 12. Sherbert, 374 U.S. at 403-10. 13. Smith 11, 494 U.S. at 888. 14. Id. at 890. Justice Blackmun, in his dissenting opinion, stated that he did "not believe the Founders thought their dearly bought freedom from religious persecution a 'luxury,' but an essential element of libertyand they could not have thought religious intolerance 'unavoidable,' for they drafted the Religion Clauses precisely in order to avoid that intolerance." Id. at 909 (Blackmun, J., dissenting). 15. Id. at 878; see also id. at 892 (O'Connor, J., concurring). 16. Everson v. Board of Educ., 330 U.S. 1, 8 (1946). According to the Everson majority: The First Amendment. .. commands that a state "shall make no law respecting 1992] 3
Restoring Free Exercise Protections by Limiting Them: Preventing a Repeat of Smith
Northern Illinois University Law Review, 1996
By the end of 1989, constitutional analysts felt secure in their understanding of the Free Exercise Clause. In simplest terms, its evolved meaning was that religious practices were not to be excessively burdened, save for a state interest of compelling force. Against this presumed background a new case was argued, one which seemed at first to be merely a new but minor elaboration on the well-settled unemployment compensation cases, which began with Sherbert v. Verner. 2 In that case, Adell Sherbert, a Seventh-Day Adventist, refused a new work schedule which required her to work on Saturday, her Sabbath. Because no compromise seemed possible, she left her job and applied for unemployment compensation. These benefits were initially denied to her "on the ground that the state supplied unemployment benefits for people for whom work was unavailable, not for people who were unavailable for work." The Supreme Court overturned this decision, however, reasoning that to judge whether a state action infringed on the Free Exercise guarantees, the court must ask (a) has religious practice been burdened; (b) did the
Free Exercise and the Resurgence of the Religious Freedom Restoration Act
SAGE Open, 2016
This article considers the development of protections of the Free Exercise of Religion, initially under the First Amendment, and later, following Congress’s discontent with the Supreme Court’s decision in Employment Division of Oregon v. Smith, under the Religious Freedom Restoration Act. The article discusses how this development resulted in the Court’s controversial split decision in the case of Burwell v. Hobby Lobby in 2014, and considers why commentators take such diverse views of that case.
Constitutional Commentary , 2008
This Article is an appreciative review of a new masterwork on religious freedom by leading constitutional scholar, Kent Greenawalt. The book crisply summarizes the full range of founding principles of religious liberty in America-liberty of conscience, freedom of exercise, religious diversity and equality, separation of church and state, and disestablishment of religion-and calls for their proper balancing still today. It then lucidly analyzes the main American cases, statutes, and regulations that bear on the free exercise of religion. Greenawalt calls on courts to accommodate maximum expressions of religious conviction that are consistent with commitment to fairness and public welfare. He rebukes the Supreme Court's reductionist reading of the Free Exercise Clause in Employment Division v. Smith (1990) to a guarantee of laws that are neutral and generally applicable. This new standard, still in place, fails to accommodate the need for religious accommodations and exemptions when general laws conflict with core claims of conscience and central commandments of the faith. While such accommodations of religion are now partly available through new federal and state statutes and free speech doctrines, Greenawalt urges a return to a more rigorous standard of free exercise review.
SSRN Electronic Journal, 2013
(striking down the Religious Freedom Restoration Act as an invalid use of Congress's Fourteenth Amendment enforcement powers); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Say. Bank, 527 U.S. 627 (1999) (holding that the Eleventh Amendment protects states from private patent lawsuits); Alden v. Maine, 527 U.S. 706 (1999) (holding that states have sovereign immunity against private suits under Fair Labor Standard Act in state as well as federal court); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (holding that the Age Discrimination in Employment Act ("ADEA") does not abrogate state's sovereign immunity); United States v. Morrison, 529 U.S. 598 (2000) (holding, inter alia, that civil remedies provision of the Violence Against Women Act of 1994 ("VAWA") failed as valid Section 5 action); Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (holding that Title I (employment discrimination) of the Americans with Disabilities Act ("ADA") failed to abrogate Eleventh Amendment); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003) (holding that Congress successfully abrogated state sovereign immunity in enacting the Family Medical Leave Act ("FMLA")); Tennessee v. Lane, 541 U.S. 509 (2004) (holding the same with respect to Title II (public accommodation) of the ADA in the context of access to the courts); United States v. Georgia, 546 U.S. 151 (2006) (holding [259] that Title II of the ADA abrogated Eleventh Amendment immunity insofar as it also involved a constitutional violation of the Eighth Amendment).