A Venerable Bulwark: Reaffirming the Primacy Approach to Interpreting Maine's Free Exercise Clause

73 Pages Posted: 17 Jun 2019 Last revised: 24 Mar 2020

See all articles by Joshua D. Dunlap

Joshua D. Dunlap

Pierce Atwood LLP; Notre Dame Law School

Date Written: June 7, 2019


Do state constitutions afford guarantees to individual rights independent of those afforded by the United States Constitution? If so, do those state guarantees differ significantly from their federal counterparts? In the context of the Declaration of Rights set out in the Maine Constitution, the answer to both questions is yes. Because state constitutions are a “font of individual liberties,” the Maine Law Court has adopted the primacy approach to interpreting the Maine Constitution. This approach gives the Maine Constitution the significance that it deserves as a consequential guarantor of the rights of Maine people, comports with principles of federalism, and promotes judicial restraint. Moreover, the primacy approach recognizes that some guarantees contained in the Declaration of Rights are broader than those set out in the first ten amendments to the United States Constitution. In particular, the free exercise clause in Article I, Section 3 of the Maine Constitution is more expansive than its counterpart in the First Amendment, as it has been interpreted in Employment Division v. Smith. Article I, Section 3 contains specific language ensuring that the state may not burden the free exercise of religion absent limited, compelling government interests. This text reflects the founders’ commitment, clearly expressed in the constitutional debates prior to the adoption of the Maine Constitution, to a generous conception of religious liberty. Only a firm commitment to independently interpreting the state constitution will ensure that the liberties guaranteed therein will be adequately protected.

Keywords: State Constitutions, Maine Declaration of Rights, Primacy Approach, First Amendment, Free Exercise, Free Exercise Clause, Free Exercise of Religion, Religious Liberty, Employment Division v. Smith, Sherbert v. Verner, Wisconsin v. Yoder

Suggested Citation

Dunlap, Joshua D., A Venerable Bulwark: Reaffirming the Primacy Approach to Interpreting Maine's Free Exercise Clause (June 7, 2019). Available at SSRN: https://ssrn.com/abstract=3400767 or http://dx.doi.org/10.2139/ssrn.3400767

Joshua D. Dunlap (Contact Author)

Pierce Atwood LLP ( email )

Merrill's Wharf
254 Commercial Street
Portland, ME 04074
United States

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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