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

Catholic Lawyer, Vol. 48, No. 2, 2009

33 Pages Posted: 11 Feb 2010  

Piero Tozzi

Alliance Defense Fund

Date Written: 2009

Abstract

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

Suggested Citation

Tozzi, Piero, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence (2009). Journal of Catholic Legal Studies, Vol. 48, No. 2, 2009; Catholic Lawyer, Vol. 48, No. 2, 2009. Available at SSRN: https://ssrn.com/abstract=1549367

Piero Tozzi (Contact Author)

Alliance Defense Fund ( email )

Scottsdale, AZ
United States

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