Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence
Journal of Catholic Legal Studies, Vol. 48, No. 2, 2009
33 Pages Posted: 11 Feb 2010
Date Written: 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.
Keywords: First Amendment, free exercise, religion, Employment Division, state constitution, religious freedom, conscience, bill of rights
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