Employment Division v. Smith and State Free Exercise Protections: Should State Courts Feel Obligated to Apply the Federal Standard in Adjudicating Alleged Violations of Their State Free Exercise Clauses?

Authors

Matthew Linnabary, University of Notre Dame Law School

Document Type

Essay

Abstract

State courts should feel free to apply whatever test is most appropriate based on the textual provisions of their state constitution that protects the free exercise or worship of its citizens. Of course, such freedom to the state courts is greatly limited in many states by the passage of their own Religious Freedom Restoration Acts. These acts generally set forth precisely how the courts must determine whether or not a law violates the free exercise or worship of a claimant. Even if not limited by a RFRA—which would generally require strict scrutiny—a state court should apply strict scrutiny to violations of its state’s free exercise clause if it is at minimum coextensive textually with the Federal Constitution. If, however, the state provision is less protective textually than the federal Free Exercise Clause, that is, if it suggests a greater ability of the State to interfere in religious practice, then the standard set forth in Smith should be applied.

Recommended Citation

Matthew Linnabary, Essay, Employment Division v. Smith and State Free Exercise Protections: Should State Courts Feel Obligated to Apply the Federal Standard in Adjudicating Alleged Violations of Their State Free Exercise Clauses?, 93 Notre Dame L. Rev. Online 99 (2018).
Available at: https://scholarship.law.nd.edu/ndlr_online/vol93/iss1/8