166 Pages Posted: 22 Jun 2013

Date Written: June 20, 2013

Abstract

Do state constitutions accord greater protection to religious freedom than does the Free Exercise Clause of the First Amendment? The answer to that question has taken on greater significance since the United States Supreme Court decided Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), more than twenty years ago. In Smith, the Supreme Court held that "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general application on the ground that the law prescribes (or proscribes) conduct that his religion prescribes (or proscribes)."

To many, both at the time and since, Employment Division v. Smith represented a marked retreat from the Court’s former free exercise jurisprudence. That, in turn, has given the interpretation and application of religious freedom guarantees under state constitutions a new importance. To what extent do state courts follow federal free exercise analysis, including Employment Division v. Smith, in interpreting their own guarantees of religious freedom? That question acquires a particular urgency given the current debate over a variety of controversial state laws, including laws mandating contraceptive coverage in employee group medical plans, laws prohibiting discrimination on account of marital status and sexual orientation and laws regulating parochial schools and home schools. This article attempts to answer that question by reviewing the principal cases decided under each State’s religious freedom guarantee, whether expressed as "free exercise of religion," "freedom of worship," "liberty of conscience," "rights of conscience" or some other formulation.