1
STRIKING THE DELICATE BALANCE
:
FREE EXERCISE OF RELIGION
AND
THE NORTH DAKOTA CONSTITUTION
by
Martin Wishnatsky P. O. Box 413
Fargo, ND 58107
(701) 306-1368
[C]ourts must move with circumspection in performing the difficult and sensitive task of striking the delicate balance between the free exercise of religious liberties and the pursuit of reasonable governmental regulations.
State v. Shaver
294 NW2d 883, 889 (N.D. 1980)
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CONTENTS
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. The Religion Clauses of the North Dakota Constitution . . . . . . . . 5
II. Federal Free Exercise Jurisprudence . . . . . . . . . . . . . . . . . . . . . . 9
III. The Example of Minnesota . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
IV. Independent Authority of State Constitutions . . . . . . . . . . . . . . .15
V. Interpreting the North Dakota Constitution . . . . . . . . . . . . . . . . 19
A. The Enabling Act States . . . . . . . . . . . . . . . . . . . . . . . . . .20
1. Montana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
2. South Dakota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. The Source States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
1. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
C. Other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
1. Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2. Maine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3. Maryland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4. Massachusetts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
D. Pre-statehood California case law . . . . . . . . . . . . . . . . . . .40
E. The Home School Cases . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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VI. Free Exercise under the North Dakota Constitution . . . . . . . . . . 51
A. Preservation of “Compelling Interest” Test . . . . . . . . . . . . .51
B. “Competing Interests” Test . . . . . . . . . . . . . . . . . . . . . . . . 54
1. O'Connor Dissent . . . . . . . . . . . . . . . . . . . . . . . . . . 55
2. Massachusetts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
3. Minnesota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
4. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
C. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
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SUMMARY
The religious freedom clauses of the North Dakota Constitution
require that the compelling interest/least restrictive means test or an
equivalent “competing interests” analysis be applied to all free exercise
claims.
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I. The Religion Clauses of the North Dakota Constitution
The North Dakota Constitution has three sections that address
religious freedom: the Preamble, the Declaration of Rights, and the
Compact with the United States. They read as follows:
Preamble
We, the people of North Dakota, grateful to Almighty God for the blessings of civil and religious liberty, do ordain and establish this constitution.
Declaration of Rights (Article I, § 3) The free exercise and enjoyment of religious profession and worship, without discrimination or preference shall be forever guaranteed in this state, and no person shall be rendered incompetent to be a witness or juror on account of his opinion on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.
Compact with the United States (Article 23, § 1) 1. Perfect toleration of religious sentiment shall be secured, and no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship.
These three constitutional affirmations of religious freedom extend in
textual power far beyond the federal constitution. The acknowledgement
of Almighty God in the preamble places the rights of the people on a
transcendent plane—deriving them, as stated in the Declaration of
Independence, from the Creator and not from the state or civil society.
The antecedent source of these rights places them also beyond
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governmental derogation. See Article I, § 1 (inalienable rights). The
Pennsylvania Supreme Court has stated:
The Pennsylvania Constitution did not create these rights. The Declaration of Rights assumes their existence as inherent in man's nature. It prohibits the government from interfering with them . . . .
W. Pa. Soc. Wrkrs. v. Conn. Gen. Life Ins., 515 A.2d 1331, 1335 (Pa.
1986). Additionally, the preamble speaks of civil and religious liberty on
the same plane (“grateful to Almighty God for the blessings of civil and
religious liberty”), thereby stating and implying that religious liberty is
not subordinate to the civil law, but of equal and independent
constitutional importance. To emphasize the importance of protecting
these rights from governmental intrusion, Article I, § 20, states: “To
guard against transgressions of the high powers which we have
delegated, we declare that everything in this article is excepted out of the
general powers of government and shall forever remain inviolate.”
Synonyms for “inviolate” are “pure” and “sacred”. Webster's New
Collegiate Dictionary.
The preamble to the federal constitution mentions neither the Creator
nor specifically religious liberty, referring only generically to “the
Blessings of Liberty”. Therefore, the frame of government of North
Dakota, in contrast to that of the federal union, places marked and
specific emphasis on religious liberty, granting particular recognition in
its opening words to the source of that liberty and the object of its
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exercise—Almighty God. As Justice Douglas stated for the court in
Zorach v. Clauson, 343 US 306, 313 (1952): “We are a religious people
whose institutions presuppose a Supreme Being.” This presupposition is
textually prominent in the North Dakota Constitution by contrast to the
federal—and therefore provides a basis for a higher protection of religious
liberty under state law and a closer scrutiny of laws and other state
action that might intrude upon that liberty. Similarly the language
“forever remain inviolate” in Article I, § 20, is much sterner and emphatic
than the limiting language of the Ninth and Tenth Amendments to the
federal constitution.
The preamble to the Minnesota Constitution also contains an
acknowledgment of deity and religion, but not in as strong terms as the
North Dakota Constitution. “We, the people of the state of Minnesota,
grateful to God for our civil and religious liberty . . . . ” The North Dakota
Constitution, by contrast, speaks of “Almighty God”, thereby delimiting
unmistakably the superiority of divine to human power, and expresses
gratitude for the “blessings of civil and religious liberty,” thereby
emphasizing their source in the goodness of the Creator. The Minnesota
Supreme Court, commenting on the preamble to its state constitution,
observed: “Religious liberty is a precious right. . . . The framers thus
acknowledged religious liberty as coequal with civil liberty.” State v.
Hershberger, 462 NW2d 393, 398 (Minn. 1990). If this is true in
Minnesota, it is at least equally true in North Dakota where the preamble
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statement of the parity of civil and religious liberty is even stronger.
The federal bill of rights in regard to religious liberty states: “Congress
shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof . . . .” This is the extent of the federal limitation,
which is negative, not affirmative. A number of states have adopted the
federal language, e.g., Hawaii, Article I, § 4; Alaska, Article I, § 4; Iowa,
Article I, § 3; Montana, Article I, § 5. Most states, however, have much
more expansive and positive language in their constitutions relating to
religious liberty. North Dakota is notable in having not one but two
separate assurances of the protection of religious freedom. The
Declaration of Rights section states:
The free exercise and enjoyment of religious profession and worship, without discrimination or preference shall be forever guaranteed in this state . . . but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.
The Compact with the United States, article 23, adds further:
Perfect toleration of religious sentiment shall be secured, and no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship.
These two taken together are as affirmative a statement of religious
freedom as appears in any state constitution and are far broader than
the bare limitation on “prohibition” in the federal constitution. The
significance of this distinction will become evident after an exploration of
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the severe limitation on federal free exercise rights resulting from the
Supreme Court decision in City of Boerne v. Flores, 521 U.S 507 (1997).
II. Federal Free Exercise Jurisprudence
The First Amendment to the federal constitution was incorporated
into the Fourteenth Amendment and thus made applicable to the states
in Cantwell v. Connecticut, 310 U.S. 296 (1940); State v. Shaver, 294
NW2d 883, 888 (N.D. 1980). Modern federal free exercise jurisprudence
begins with Sherbert v. Verner, 374 US 398 (1963) and Wisconsin v.
Yoder, 406 US 205 (1972). These cases established a compelling
interest/least restrictive means test for exercises of government power
that burdened religious freedom and required courts to balance the
governmental interest against the intrusion on free exercise rights. This
standard was employed by the North Dakota Supreme Court in the
1980's in a series of home schooling cases. See, e.g., State v. Shaver, 294
NW2d at 889 (“difficult and sensitive task of striking the delicate balance
between the free exercise of religious liberties and the pursuit of
reasonable governmental regulations”); State v. Rivinius, 328 NW2d 220,
228 (N.D. 1982) (“balancing process”).
This paradigm, however, was overturned by the U.S. Supreme Court
in Employment Division v. Smith, 110 S.Ct. 1595 (1990). The court
reviewed its precedents and determined by a 5-4 vote that the balancing
test required it to assess the nature of burdens on religious practice, a
matter it felt unqualified to judge. Id. at 1604. Additionally, the court
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stated that the concept of free exercise exemptions could make every
man a law unto himself. Id. at 1603. Therefore, neutral laws of general
applicability would be found per se constitutional without any need for a
balancing test regardless of their impact upon religious practice. Id. at
1599-1603. If this result opened the door to religious discrimination
without a constitutional remedy, that was the price of democracy. Id. at
1606. The court, seeking to preserve its precedents, made a number of
significant exceptions. “Hybrid” cases, where another constitutional right
was implicated along with the free exercise question were still entitled to
heightened scrutiny. Id. at 1601 -1602. Also preserved were cases where
the government provided for individualized exemptions from a statute,
such as unemployment discrimination law. Where the law itself provided
for case-by-case exemptions, religious exemptions were also permissible.
Id. at 1603. Garden-variety “neutral laws of general applicability,” which
did not discriminatorily target religion, required no scrutiny at all. In
such cases, the free exercise clause was of no effect.
In response to Smith, the U.S. Congress by near unanimity passed the
Religious Freedom Restoration Act (“RFRA”) in 1993. RFRA explicitly
restored the Sherbert/Yoder balancing test to free exercise claims,
effectively nullifying Smith. Between the issuance of Smith in mid-1990
and the enactment of RFRA in November, 1993, there were, to the
knowledge of this writer, no reported North Dakota free exercise cases.
Thus, the question of what Smith had done to North Dakota's prior free
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exercise jurisprudence firmly grounded in the Sherbert/Yoder test never
came up for decision. In any case RFRA would have provided a statutory
avenue to the same result. On June 25, 1997, however, the United States
Supreme Court declared RFRA unconstitutional, City of Boerne v. Flores,
supra, stating that while Congress had authority under section 5 of the
Fourteenth Amendment to implement constitutional protections, it had
exceeded its authority by seeking to define the substance of the right
itself, a matter the court asserted to be its exclusive prerogative. The
court stated that “it is this court's precedent, not RFRA, which must
control”, thereby affirming Smith in its entirety.
RFRA was a clear and unambiguous mandate to apply the
Sherbert/Yoder balancing test to all free exercise claims. However,
without RFRA and facing the “no special protection for religion”
determination of the Supreme Court in Smith, the federal basis for free
exercise protection has shrunk noticeably. Therefore, the extent of free
exercise protection existing under state constitutions has suddenly
emerged as a significant issue.
Although there were no North Dakota free exercise cases after Smith
and before RFRA, other states did have occasion to address the issue of
filling the gap created by Smith and continued by Flores. This case law
bears review because it frames a newly-developing legal environment
which may be helpful in explicating the meaning of the religion clauses
of the North Dakota constitution. State religious freedom constitutional
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law between Smith and RFRA, primarily cases from 1990-1993, argues
for the existence under the religion clauses of the North Dakota
Constitution of the same preferred position for religion that existed pre-
Smith in the federal case law (1990 and prior) and under RFRA before its
revocation (1994-97). After the enactment of RFRA, very few free exercise
cases were brought directly under the First Amendment because of its
anemic protections. The corpus of RFRA case law addressing free
exercise issues, however, mushroomed. Should the North Dakota state
constitution be found to require a RFRA-like standard of scrutiny for free
exercise claims, RFRA cases by analogy will provide pertinent precedent.
III. The Example of Minnesota
Those states which were forced by the retraction of religious rights
initiated by Smith seriously to examine their own constitutions for
protections no longer available under federal constitutional law provide
useful guidance in exploring this question. A leading case is State v.
Hershberger, 462 NW2d 393, 398 (Minn. 1990). An Amish defendant
refused to post an orange triangle on the back of his buggy, as required
by state law, because it offended his unworldliness. The Minnesota
Supreme Court, conducting a Sherbert/Yoder analysis, overturned the
criminal conviction for failure to demonstrate that a less restrictive
alternative would not have achieved the state's legitimate traffic safety
objective. State v. Hershberger, 444 NW2d 282 (Minn. 1989). The
prosecution sought U.S. Supreme Court review and by happenstance
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intersected the Smith decision. As it often does when cases parallel to the
one being reversed are pending on its docket, the court issued a GVR.
Certiorari was granted, the decision vacated, and the matter remanded
for reconsideration in the light of Smith.
On remand the Minnesota Supreme Court, exploring what was left of
free exercise under the federal constitution, noted that it could make a
“hybrid case” by bringing in associational freedoms. Instead the court
chose to abandon parsing “the uncertain meaning of Smith for a more
sure foundation in the religion clauses of its own state constitution. State
v. Hershberger, 462 NW2d at 396-97. The court set out Article I, § 16 of
the Minnesota Constitution, which addresses free exercise as follows:
The right of every man to worship God according to the dictates of his own conscience shall never be infringed . . . nor shall any control of or interference with the rights of conscience be permitted . . . ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state . . .
Id. at 397 (portions omitted relate to establishment questions). This
clause resonates with the North Dakota Constitution. The qualifying
phrase which denotes the governmental interests which may outweigh
religious liberty is identical to that in article I, § 3 of the North Dakota
Constitution. Both constitutions affirmatively declare religious liberty
and then state certain limitations that may legitimately override its
expression.
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This language is of a distinctively stronger character than the federal counterpart . . . Whereas the first amendment establishes a limit on government action at the point of prohibiting free exercise, section 16 precludes even an infringement on or an interference with religious freedom. Accordingly, government actions that may not constitute an outright prohibition on religious practices (thus not violating the first amendment) could nonetheless infringe on or interfere with those practices, violating the Minnesota Constitution.
State v. Hershberger, 462 NW2d at 397 (emphasis in original).
When the compact clause of the North Dakota Constitution is read
together with Article I, § 3, the same conclusion arises. “Perfect toleration
of religious sentiment” is as expansive a requirement for accommodation
of religion as could be imagined. Like the Minnesota Constitution, it is an
affirmative command, not merely a prohibition on government. “[T]he
state Bill of Rights expressly grants affirmative rights in the area of
religious worship while the corresponding federal provision simply
attempts to restrain governmental action.” State v. Hershberger, 462
NW2d at 397. Likewise the command of the North Dakota constitution
that “[t]he free exercise and enjoyment of religious profession . . . shall be
forever guaranteed” requires robust protection of religious freedom that it
may be enjoyed as well as exercised.
Both the Minnesota and North Dakota constitutions specifically
delimit in identical language the state interests that may counterbalance
religious freedom.
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Rather than a blanket denial of a religious exemption wherever public safety is involved, only religious practices found to be inconsistent with public safety are denied an exemption. By juxtaposing individual rights of conscience with the interest of the state in public safety, this provision invites the court to balance competing values in a manner that the compelling state interest test we relied on in Hershberger I ably articulates.
State v. Hershberger, 462 NW2d at 398. Examining its own constitution,
the Minnesota Supreme Court was able to restore the same degree of
religious freedom to its citizens that the United States Supreme Court
had abruptly deleted from the federal constitution.
Thus, while the terms “compelling state interest” and “least restrictive alternative” are creatures of federal doctrine, concepts embodied therein can provide guidance as we seek to strike a balance under the Minnesota Constitution between freedom of conscience and the state's public safety interest.
Id. See also State by Cooper v. French, 460 NW2d 2, 8-9 (Minn. 1990)
(plurality opinion):
In light of the unforeseeable changes in established first amendment law set forth in recent decisions of the United States Supreme Court, justice demands that we analyze the present case in light of the protections found in the Minnesota Constitution. . . . . The plain language of [Art. I, § 16] commands this court to weigh the competing interests at stake whenever rights of conscience are burdened.
IV. Independent Authority of State Constitutions
The Minnesota example is not exceptional.. States commonly find an
independent source of constitutional rights in their state constitutions.
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“This court has long recognized that individual liberties under the state
constitution may deserve greater protection than those under the broadly
worded federal constitution.” State v. Hershberger, 462 NW2d at 398. The
United States Supreme Court agrees. A state may “exercise its police
power or its sovereign right to adopt in its own Constitution individual
liberties more expansive than those conferred by the Federal
Constitution.” Pruneyard Shopping Center v. Robins, 447 US 74, 81
(1980). See also Cooper v. California, 386 US 58, 62 (1967) (“State's
power to impose higher standards . . . than required by the Federal
Constitution if it chooses to do so”); City of Mesquite v. Aladdin's Castle,
Inc., 455 US 283, 293 (1982) (“state is entirely free to read its own State's
constitution more broadly than this court reads the Federal
Constitution”); Minnesota v. National Tea Co., 309 US 551, 557 (1940)
(“fundamental that state courts be left free and unfettered by us in
interpreting their state constitutions”). The content of state constitutional
protections is not a matter for federal review as long as they do not
subtract from the federal guarantees. “[S]uch rights must be at least the
same as and may be greater than rights founded on the federal clause.”
Pfost v. State, 713 P.2d 495, 500 (Mont. 1985). “Although State courts
may not circumscribe rights guaranteed by the Federal Constitution,
they may interpret their own law to supplement or expand them[.]”
People v. PJ. Video, Inc., 501 NE2d 556, 560 (N.Y. 1986). “A state is free
to provide more protections to its citizens than the U.S. Constitution, but
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it cannot provide less.” State v. Davidson, 471 NW2d 691, 694
(Minn.App. 1991). “We cannot interpret our state constitution to grant
narrower rights than granted by the federal constitution.” S.E. Cass
Water Res. v. Burlington, 527 NW2d 884, 890 (N.D. 1995); Hootch v.
Alaska State-operated School System, 536 P.2d 793 (Alaska 1975) (state
constitution must comply with “minimum standards” of federal
constitution).
Clearly stated “independent and adequate” state grounds for a
decision remove the matter from the appellate jurisdiction of the
Supreme Court. Michigan v. Long, 463 US 1032, 1040 (1983); Jankovich
v. Indiana Toll Road Commission, 379 US 487, 491-92 (1965); City of
Bismarck v. Altevogt, 353 NW2d 760. 766 n.6 (N.D. 1984).
Time and again in recent years, the Supreme Court as well as its individual Justices have reminded State courts not merely of their right but also of their responsibility to interpret their own Constitutions, and where in the State courts' view those provisions afford greater safeguards than the Supreme Court would find, to make plain the State decisional ground so as to avoid unnecessary Supreme Court review.
People v. Scott, 593 NE2d 1328, 1347 (N.Y. 1992) (Kaye, J., concurring).
Such is the power of federalism, a power that state courts are discovering
across the country. “Federal rights are considered minimal and a state
constitution may be more demanding than the equivalent federal
constitutional provision.” PJost v. State, 713 P.2d at 501. “The federal
constitution provides the floor, not the ceiling for protecting individual
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rights.” State v. Jacobson, 545 NW2d 152, 160 (N.D. 1996) (Levine, J.,
dissenting on other grounds). See also Buckman v. Montana Deaconess
Hosp., 730 P.2d 380, 384 (Mont. 1986) (“federal constitution establishes
the floor and not the apex of constitutional rights”). For a particularly
brash expression of state constitutional independence, note the
following:
As a state court, sitting in Texas, our expertise is in Texas law, our judges are Texas citizens and members of the Texas Bar, and our concerns are Texas concerns. If we simply apply federal law in all cases, why have a Texas Constitution, and why have a Texas Supreme Court?
Davenport v. Garcia, 834 SW2d 4, 19 (Tex. 1992). See similarly Sands v.
Morongo Unified School Dist, 809 P.2d 809, 836 (Cal. 1991) (Mosk, J.
concurring) (“We are not a branch of the federal judiciary; we are a court
created by the Constitution of California and we owe our primary
obligation to that fundamental document.”)
As a number of courts have observed, the federal Bill of Rights derived
from pre-existing state constitutions enacted in the aftermath of the
Declaration of Independence.” Our Constitution precedes and was, in
large measure, the model for the Federal Constitution.” Attorney General
v. Desilets, 636 NE2d 233, 243 (Mass. 1994) (Liacos, C.J., concurring).
“[T]he Bill of Rights was based upon the corresponding provisions of the
first state constitutions, rather than the reverse.” People v. Brisendine,
531 P.2d 1099, 1113 (Cal. 1975). The meaning of state constitutions,
therefore, is not dependent upon the interpretation of a document they
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inspired. “When James Madison drafted the federal Bill of Rights, he
drew upon existing provisions in various state constitutions.” Friedman
v. Com'r of Public Safety, 473 NW2d 828, 830 (Minn. 1991). See generally
Hans A. Linde, First Things First: Rediscovering the States' Bills of Rights,
9 U.Balt.L.Rev. 379, 383 (1980) (“rights under the state constitutions
were first in time”); State v. Kennedy, 666 P.2d 1316, 1322 (Or. 1983)
(Justice Linde) (Bill of Rights adopted “to bind the federal government to
guarantees already established in the existing states”); State v.
Dixson/Digby, 740 P.2d 1224, 1236 (Or.App. 1987) (state bill of rights
“had antecedents dating back at least to the time of the early state
constitutions of the Revolutionary era”); People v, Scott, 593 NE2d 1328,
1347 (N.Y. 1992) (“Federal Bill of Rights . . . drawn from State
constitutional antecedents”). In general, “[p]rior to the adoption of the
federal Constitution, each of the rights eventually recognized in the
federal Bill of Rights had previously been protected in one or more state
constitutions.” Hon. William Brennan, “State Constitutions and
Protection of Individual Rights,” 90 Harvard Law Review 489, 501 (1977).
V. Interpreting the North Dakota Constitution
The North Dakota Supreme Court has in many contexts affirmed the
independent vitality of the state constitution. “It is within the power of
this court to apply higher constitutional standards than are required of
the States by the Federal Constitution.” State v. Matthews, 216 NW2d 90,
99 (N.D. 1974); State v. Klodt, 298 NW2d 783, 786 (N.D. 1980) (same);
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Matter of Adoption of KA.S., 499 NW2d 558, 563 (N.D. 1993). “It is a topic
of little debate that the States are independently responsible for
safeguarding the rights of their citizens. In this regard a State may
provide its citizens greater protection than the safeguards guaranteed in
the Federal Constitution.” State v. Nordquist, 309 NW2d 109, 113 (N.D.
1981) (citations omitted); City of Bismarck v. Altevogt, 353 NW2d at 766
(same). Thus both United States and North Dakota law recognize that the
state constitution may afford protection to the rights of citizens greater
than the minimum federal mandate. 'We have often recognized that our
constitution may afford broader rights than those granted under the
federal constitution as has the United States Supreme Court.” State v.
Orr, 375 NW2d 171, 178 n.6 (N.D. 1985) (citations omitted); Bismarck
Public School Dist 1 v. State, 511 NW2d 247, 255 (N.D. 1994) (same). This
application is not narrowly construed. “(O]ur constitution applies to ever-
changing needs and problems facing society and implementation of its
edicts may often require varying and innovative adaptations.” Orr, supra
at 179. Compare Davenport v. Garcia, 834 SW2d at 10 (“the dimensions
of our constitutionally guaranteed liberties are continually evolving”).
A. The Enabling Act States
The North Dakota Supreme Court has suggested that it will look for
assistance in interpreting provisions of its state constitution to decisions
of the states that entered the Union under the same enabling act, namely
South Dakota, Montana, and Washington. Such comparisons while “not
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in themselves conclusive . . . nevertheless are helpful, if not persuasive.”
Cardiff v. Bismarck Public School Dist, 263 NW2d 105, 112 (N.D. 1978).
A comparison of the key constitutional provisions and existing case law of states which entered the Union at the same time and under similar conditions as North Dakota will be very helpful and valuable in determining the intent of the people of North Dakota in adopting . . . the North Dakota Constitution. . . . We are impressed with the different language employed in the constitutions of the four states, Montana, South Dakota, North Dakota, and Washington, which came into the Union at the same time and under the same Enabling Act.
Id. at 112-13. Former Justice Herbert Meschke suggested the importance
of looking to similar provisions in the constitutions of other states for
insight into the meaning of the North Dakota constitution.
The rule for construing a constitutional provision which comes from another state is the same as the rule for construing a statute which comes from another state. When resource materials in this state are insufficient, it is important to look for guidance in similar provisions in other state constitutions and in their constructions, particularly when the constitutional provisions are linked historically. The well-reasoned construction of a like constitutional provision by another state is highly persuasive.
Meschke and Spears, “Roots of the North Dakota Constitution”, 65 North
Dakota Law Review 343, 381 (1990) (emphasis added). Indeed, the North
Dakota Supreme Court has stated that it has a duty to take judicial
notice of the source of the constitutional provision being interpreted.
State ex rel. Linde v. Hall, 159 NW 281, 286 (1916).
The Enabling Act which provided the basis for statehood for North
22
Dakota, South Dakota, Montana, and Washington required that the
constitutional convention of each proposed state provide by ordinance
“irrevocable without the consent of the United States and the people of
said states”:
First. That perfect toleration of religious sentiment shall be secured, and that no inhabitant of said states shall ever be molested in person or property on account of his or her mode of religious worship.
Enabling Act, 25 Statutes 676, § 4; N.D. Century Code, Vol. 13, at 64.
This is the immediate origin of what is now Article 23, section 1 of the
North Dakota Constitution. The other three states which came into the
Union under the Enabling Act all have differing religious freedom clauses
in their declarations of rights. Montana repeats the federal language:
“The state shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.” Article I, § 5. South Dakota has
language quite similar to that of Minnesota, as discussed above: “The
right to worship God according to the dictates of conscience shall never
be infringed. . . . but the liberty of conscience hereby secured shall not be
so construed as to excuse licentiousness, the invasion of the rights of
others, or to justify practices inconsistent with the peace or safety of the
state.” Article VI, § 3. The Washington Constitution is the most
expansive, incorporating language from the compact with the United
States: “Absolute freedom of conscience in all matters of religious
sentiment, belief and worship, shall be guaranteed to every individual,
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and no one shall be molested or disturbed in person or property on
account of religion; but the liberty of conscience hereby secured shall not
be so construed as to excuse acts of licentiousness or justify practices
inconsistent with the peace or safety of the state.” Article I, § 11.
The sister states of South Dakota and Washington contain proviso
language modeled on that which is in the North Dakota and Minnesota
constitutions. They may be expected, therefore, as analyzed in
Hershberger, supra, to adopt a balancing model in weighing civil against
religious claims. There is no case law from South Dakota or Montana on
the meaning of the religion provisions of their state constitutions in the
aftermath of Smith. However, they have made general statements about
the role of their state constitutions in defining rights parallel to those in
the federal constitution.
1. Montana
“[W]e refuse to ‘march lock-step’ with the United States Supreme
Court where constitutional issues are concerned, even if the applicable
state Constitution provisions are identical or nearly identical to those of
the United States Constitution.” State v. Johnson, 719 P.2d 1248, 1254
(Mont. 1986) (Fourth Amendment case). Because the Montana religious
freedom clause is identical to that in the federal constitution, this
language is quite significant. If Montana, construing a religion clause
identical to the federal language, feels a duty to interpret its state
constitution independent of federal case law, certainly North Dakota, its
24
sister state admitted under the same enabling act, may allow a more
expansive interpretation of its own textual provisions which are far
broader than the First Amendment. “We will not be bound by decisions of
the United States Supreme Court where independent state grounds exist
for developing heightened and expanded rights under our state
constitution.” Id. at 1255 (emphasis added). Where the Montana
constitution contains provisions for which there is “no similar textual
language in the United States Constitution,” the Montana Supreme
Court has recognized the existence of rights “beyond that inferred from
the United States Constitution.” State v. Brown, 755 P.2d 1364, 1370
(Mont. 1988) (right of privacy).
The Montana Supreme Court has not had occasion to construe the
religion clause of its state constitution in the wake of Smith. However, it
has stated that when confronted with “seeming inconsistencies in the
decisions of the United States Supreme Court,” it would reconsider its
prior willingness to apply those decisions when independent and
adequate grounds exist for finding greater protection under parallel state
constitutional provisions. State v. Bullock, 901 P.2d 61, 70 (Mont. 1995).
In doing so, “we look to other jurisdictions [with] state constitutional
provisions similar to ours . . .” Id. at 72. Smith is an abrupt departure
from prior case law of the Supreme Court in the area of free exercise.
Therefore, it is quite likely that the Montana Supreme Court in an
appropriate case would find “additional protection” for religious freedoms
25
under the textually identical provision of its own constitution. Id. at 74.
2. South Dakota
The South Dakota Supreme Court has not had occasion to consider
an independent construction of its state constitution's religion clause,
but it has on other matters been willing to find protections in the state
constitution that were unavailable under United States Supreme Court
decisions. “We have always assumed the independent nature of our state
constitution regardless of any similarity between the language of that
document and the federal constitution.” State v. Opperman, 247 NW2d
673, 674 (S.D. 1976). In Opperman, the United States Supreme Court
had reversed a Fourth Amendment decision of the South Dakota
Supreme Court. On remand the court reached the same result under the
state constitution, an approach similar to the Minnesota Supreme Court
in Hershberger. When construing parallel provisions of the state
constitution, “we are under no compulsion to follow the United States
Supreme Court[.]” Opperman at 674. See also State v. Neville, 346 NW2d
425, 427 (S.D. 1984) (“We alone determine the extent of protection
afforded under our state constitution”). Faced with a First Amendment
equivalent of Opperman, the South Dakota Supreme Court may be
expected to follow these principles and give independent force to Article I,
§ 5, which has great similarities with the Minnesota and North Dakota
constitutions.
3. Washington
26
Such reasoned anticipation is not needed in the case of Washington.
In First Covenant Church v. Seattle, 840 P.2d 174 (Wash. 1992), the
Washington Supreme Court received a Smith GVR. Examining its prior
opinion under the Smith limits, the court found heightened scrutiny still
to be applicable under the federal constitution because the landmarks
ordinance in question (1) made specific reference to religious facilities
and therefore was not neutral and generally applicable; (2) allowed for
individualized assessments in each case, another Smith exception; and
(3) hindered nonverbal speech, namely the religious message conveyed by
the church's architecture, therefore creating a “hybrid” exception. Id. at
178-82. The court, however, did not stop there. Drawing on Hershberger,
it sought to avoid the “uncertainty” of Smith and rested its decision “also
on independent grounds under the Washington constitution.” Id. at 185.
As a sister state admitted under the same enabling act as North
Dakota, Washington's interpretation of its state religion clause in the
wake of Smith is directly pertinent to interpreting the religion clauses of
the North Dakota constitution in the aftermath of Flores. These clauses
have great similarity and are both markedly broader than their federal
counterpart. The Washington constitution speaks of “absolute freedom of
conscience in all matters of religious sentiment,” the North Dakota
Constitution of “perfect toleration of religious sentiment.” Both contain
the enabling clause language about freedom from being molested in
person or property, and both carry the same limiting language about
27
licentiousness and public peace and safety. They certainly are more like
to each other than either one is to the federal First Amendment.
Therefore, the Washington interpretation of its own free exercise clause
in the aftermath of Smith is useful and persuasive authority for the North
Dakota Supreme court.
The Washington court begins: 'The language of our state constitution
is significantly different and stronger than the federal constitution.” First
Covenant Church v. Seattle, 840 P.2d at 186. The court found that Smith
accomplished an objective at odds with the Washington constitution's
guarantees.
Smith II departs from a long history of established law and adopts a test that places free exercise in a subordinate, instead of preferred position. . . . Our court, conversely, has rejected the idea that a political majority may control a minority's right of free exercise through the political process.
Id. at 187. The court then adopted the compelling state interest/least
restrictive means test as the operational definition of Article I, § 11 of the
state constitution. This, of course, is the equivalent of a RFRA or pre-
Smith free exercise test—the same result reached by the Hershberger
court in its GVR analysis of the free exercise protections of the Minnesota
constitution.
Justice Utter, in concurrence, urged the court to move beyond
restoration of religious freedom in terms taken from federal cases. “A
28
truly independent state constitutional discourse cannot occur if we resort
solely to federal jurisprudence in defining rights protected under our
state constitution.” Id. at 191. He looked to the “unique” and “rich”
language of Article I, § 11. He noted that the Washington Constitution
protects “both belief and religiously motivated conduct,” Id. at 192, and
noted two specific reasons why the protection of religious liberty is
stronger under the state than the federal constitution. “First, Const, art.
1, § 1 grants Washington citizens affirmative rights that are absolute,”
whereas the federal constitution “only limits government action at the
point of prohibiting the exercise of religion.” Id. The Minnesota court,
considering its state constitution employed the same reasoning. State v.
Hershberger, 462 NW2d at 397. “Thus, the text of Const, art. 1, § 11
indicates we should start with the assumption that government may not
interfere with sincerely held religious belief and religious practice.” First
Covenant at 192. Justice Utter then considered the licentiousness/peace
and safety limiting clause, stating:
Second, Const, art. 1, § 11 expressly limits the governmental interests that may outweigh the otherwise absolute right to religious liberty. Only the government's interest in peace and safety or in preventing licentious acts can excuse an imposition on religious liberty.
Id. Only these “limited countervailing governmental interests” can justify
an imposition on religious freedom. Id.
Implicit in this analysis is the necessity of balancing a robust freedom
“forever guaranteed” in the language of the North Dakota Constitution,
29
where it is affirmatively granted “perfect toleration” and “enjoyment” with
the specific interests set out as a permissible limitation. Under state
constitutional language such as that in Minnesota, North Dakota and
Washington, a balancing of civil and religious interests is virtually
mandated. The adoption by both Minnesota and Washington of the
compelling interest/least restrictive means test under their state
constitutions in response to Smith is very helpful and useful precedent
for finding the equivalent of RFRA/pre-Smith protection under the North
Dakota Constitution as well.
B. The Source States
1. California
We need not rest on analogy, however. Article I, § 3 of the North
Dakota Constitution has an exact historical derivation. It is taken from
the California Constitution of 1879 which in turn adopted the language
of the New York Constitution of 1777. Article I, § 4 of the California
Constitution reads: “Free exercise and enjoyment of religion without
discrimination or preference are guaranteed. This liberty of conscience
does not excuse acts that are licentiousness, or inconsistent with the
peace or safety of the State.” This language is virtually indistinguishable
from Article I, § 3 of the North Dakota Constitution. The only difference is
that the North Dakota Constitution speaks of “religious profession and
worship” instead of simply “religion” and uses the phrase “forever
guaranteed” instead of the word “guaranteed.”
30
When our Constitution was adopted in 1889, article 4 [Article I, § 3] was taken literally from the Constitution of California of 1879 . . . . . . The first Constitution of the state of New York, adopted in 1777, contained the following provision: “ . . . the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed within this state, to all mankind; provided that the liberty of conscience hereby granted shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.”
State v. Barnes, 132 NW 215, 216 (N.D. 1911). Justice Spalding,
thereupon showing that this phraseology was carried forward without
substantive alteration into the New York constitutions of 1821 and 1846
[today Article I, § 3], concluded: “It thus appears that California adopted
its provisions regarding religion from New York[.]” Id. For confirmation,
see Sands v. Morongo Unified School Dist, 809 P.2d at 837 (religion clause
of California Constitution “had its origin in the New York Constitution”).
The only difference between the New York language and that in the
North Dakota Constitution is that New York provides that these freedoms
shall be “allowed,” whereas North Dakota states they shall be
“guaranteed.” This emendation occurred at the California constitutional
convention of 1879.
The 1879 Constitutional Convention strengthened the original provision by substituting the word “guaranteed” for “allowed.” Explaining the change, Mr. O'Sullivan, a delegate to the convention, commented: “I propose this amendment, because it is quite evident that the word ‘allowed’ conveys the idea that the right to disallow or deny exists. Now, sir, I deny that any Government or any power on earth has a right
31
to grant or deny freedom of religious belief . . . . Our Government, being republican, should guarantee full liberty to the citizen in his actions. ‘Guarantee,’ therefore, is the proper word . . . .” (Debates and Proceedings, Cal.Const.Convention 1878-1879, p. 1171.)
Smith v. Fair Emp. Housing Com'n, 30 Cal.Rptr.2d 395, 409 (Cal.App.3
Dist. 1994), vacated on other grounds, Smith v. Fair Employment &
Housing Com'n, 913 P.2d 909 (Cal. 1996).
California free exercise cases from the last thirty years uniformly
apply the compelling interest/least restrictive means test. Smith v. Fair
Employment & Housing Com'n, 913 P.2d at 930. These recent cases “treat
the state and federal free exercise clauses as interchangeable” and
typically construed Article I, § 4 of the California Constitution to “afford
the same protection for religious exercise as the federal Constitution
before Employment Division v. Smith.” Id. Under the approach of these
cases, the state constitutional analysis is the same as RFRA. Id. Compare
Hunt v. Hunt, 648 A.2d 843, 853 (Vt. 1994) (state constitution adopting
mandated strict scrutiny under federal constitution “protects religious
liberty to the same extent [as RFRA]”).
Older cases, however, stated the California Supreme Court, “suggest
an approach closer to that of Employment Division v. Smith . . . which
found no constitutional objection to the application to a religious objector
of a neutral, generally applicable law.” Id. Because the case under review
failed even a RFRA test, the court found no need separately to analyze
the content of Article I, § 4. The result would not have changed. “These
32
important questions should await a case in which their resolution affects
the outcome.” Id. at 931. Prior to Smith, state constitutional provisions
were required to meet the federal floor of strict scrutiny. Consequently
almost without exception states simply adopted the federal formula.
“Almost without exception, none offered more protection to religious
practice than that required by strict scrutiny.' Hunt v. Hunt, 648 A.2d at
852. “No court, however, has articulated a test more protective than
[Sherbert/Yoder].” Smith v. Fair Employment & Housing Com'n, 913 P.2d
at 931. The existence of heightened scrutiny for religious questions
under the California Constitution remains to be decided. Now that RFRA
has been overturned, such an occasion for decision will undoubtedly
arise.
2. New York
Finally we turn to the original source itself: New York. For free
exercise purposes Article I, § 3 of the New York Constitution is identical
to Article I, § 3 of the North Dakota Constitution with the difference of
“allowed” versus “guaranteed” as discussed above. Thus, the North
Dakota Constitution may be considered to be somewhat stronger in
keeping with Mr. O'Sullivan's stated intent to “guarantee full liberty to
the citizen in his actions.” The New York free exercise right has been
extended to inmates by legislation and is construed as “a liberty interest
which has been called a ‘preferred right.’” Rivera v. Smith, 472 NE2d
1015, 1020 (N.Y. 1984). As a preferred right, it would certainly rise above
33
the U.S. Supreme court's leveling in Smith.
An independent construction of our own State Constitution is particularly appropriate where a sharp or sudden change in direction by the United States Supreme Court dramatically narrows fundamental constitutional rights that our citizens have long assumed to be part of their birthright.
People v. Scott, 593 NE2d 1328, 1342 (N.Y. 1992). In Rourke v. NYS Dept.
of Corr. Services, 603 NYS2d 647 (Sup. 1993), the court examined Article
I, § 3 of the New York Constitution post-Smith and pre-RFRA.
Although mindful of the U.S. Supreme Court's decision in [Smith], and its departure from precedent, and the traditional compelling interest test of free exercise jurisprudence, this Court cannot ignore the New York Court of Appeals' long history and commitment to the protection of individual rights and liberties beyond those afforded by the U.S. Constitution, and federal constitutional law. Given this history and commitment (so ably illustrated by petitioner) and the importance of this free exercise right, it is hard to imagine that New York would not continue to apply a “strict scrutiny” standard of review, and a balancing of the state's competing interests and the fundamental rights of the individual.
Id. at 649-50. The court, mindful of “the broad affirmative language of
article I, § 3,” and “the Supreme Court's departure from precedent in
Smith,” decided the case under New York constitutional law, “applying
the least restrictive compelling-interest test[.]” Id. at 650.
C. Other States
The experience of other states in free exercise cases is quite similar to
that of Minnesota, Washington, California and New York. Prior to Smith,
the federal compelling interest/least restrictive means test was employed
as a single standard whether examining the state or federal constitution.
34
In effect, since the federal standard was so strict, there was little room or
necessity to seek further protection under the state constitution. Thus,
cases were decided in practice under federal case law. Mention of the
state constitution's parallel provisions served only to affirm the
applicability of the federal standard under either analysis. See State v.
DeLaBruere, 577 A.2d 254, 270-71 (Vt. 1990) for a survey of pre-Smith
free exercise jurisprudence in 13 states, finding that with one debatable
exception all treated the issue under federal precedent and found no
greater protection under the state constitution than under the First
Amendment.
Smith, of course, changed this judicial landscape. With the retreat of
the Supreme Court from strict scrutiny and the substantial
abandonment of the compelling interest/least restrictive means test, the
states were forced to determine if their constitutional jurisprudence was
merely a federal shadow. Would the highly-prized independence of state
constitutional law impel them to retain strict scrutiny for state
constitutional claims despite its repudiation by the supreme federal
court? In almost every case the states determined that their own
constitutions would continue to require strict scrutiny. Although the
states may have applied the federal analysis to their own free exercise
clauses, that application, once adopted, did not change simply because
federal law had altered course. The result of Smith, therefore, in the
states that had occasion to examine the issue, was to make the state
35
constitution the primary vehicle prior to RFRA for protecting free exercise
rights. Almost uniformly the power of the state constitution to retain
what the federal constitution had discarded made Smith in many cases
only a curiosity, and lent further impetus to the revival of state
constitutionalism which had begun in the 1970's with Justice Brennan's
seminal law review article. “State Constitutions and the Protection of
Individual Rights,” 90 Harvard Law Review 489 (1977). RFRA
overshadowed this development, but its eclipse has now brought it back
into the limelight.
The result of Smith and Flores, therefore, is not to reduce the efficacy
of free exercise claims but to require litigants to bring them in state court
instead of federal court. The Supreme Court may have eviscerated the
First Amendment and commanded Congress not to restore it, but it
cannot prevent the states from making up the lack. In addition to the
Minnesota, Washington, California and New York examples cited above,
note the following:
1. Alaska
The Alaska Supreme Court adopted the Sherbert/Yoder test in Frank
v. State, 604 P.2d 1068 (Alaska 1979). In a post-Smith free exercise case,
the court continued to apply its own precedent, even though Smith had
taken federal case law in a different direction.
We are not bound in expounding the Alaska Constitution's Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or
36
closely similar provisions of the United States Constitution. Thus, even though the Free Exercise Clause of the Alaska Constitution is identical to the Free Exercise Clause of the United States Constitution, we are not required to adopt and apply the Smith test to religious exemption cases involving the Alaska Constitution merely because the United States Supreme Court adopted that test to determine the applicability of religious exemptions under the United States Constitution.
Swanner v. Anchorage Equal Rights Com'n, 874 P.2d 274, 280-81 (Alaska
1994). The court therefore evaluated the state constitutional claim under
its own precedent. “We will apply Frank v. State ...” Id.
2. Maine
In Blount v. Dept. of Educ. & Cultural Serv., 551 A.2d 1377 (Me. 1988),
the court employed the “four-stage” federal “balancing test” to analyze a
free exercise claim. Id. at 1379-1385. Turning to the state constitution,
the court concluded that “the full range of protection afforded ... by the
Maine Constitution is also available under the United States
Constitution,” thereby eschewing a separate state analysis. Post-Smith in
Rupert v. City of Portland, 605 A.2d 63 (Me. 1992), the court applied
Blount, its own precedent, in analyzing a free exercise claim under the
Maine Constitution, engaging in the four-part balancing test it had
adopted as state constitutional law from federal cases. That Smith had
abandoned this test as a matter of federal law did not lesson its vitality
as state law. Whether or not Maine eventually incorporated Smith into its
own free exercise jurisprudence was a matter for independent state
determination when and as the court should so determine. “We have no
37
reason in this case to decide whether we in applying the Maine Free
Exercise Clause will change course to follow the Supreme Court's lead in
Smith” Rupert v. City of Portland, 605 A.2d at 65 n.3. Federal First
Amendment precedent was suggestive, not binding. Exercising its
independent role of expounding the state constitution, the Maine court
could adopt or reject such reasoning as it considered appropriate.
3. Maryland
A federal court held that Smith did not by itself alter prior Maryland
constitutional law which applied the compelling interest test to free
exercise claims. Any such alteration would be a question of state, not
federal, law. “It is axiomatic that questions of state constitutional law are
to be answered by state courts, rather than by the federal judiciary.”
Keeler v. Mayor & City Council of Cumberland, 940 F.Supp. 879, 887
(D.Md. 1996), quoting Green v. Zendrian, 916 F.Supp. 493, 498 (D.Md.
1996).
4. Massachusetts
The Massachusetts Constitution contains two clauses on the free
exercise of religion: article 2 of the Declaration of Rights and Article 46, §
1 of the amendments to the constitution. Article 2 is an
affirmative liberty of conscience provision with a limiting proviso:
“provided he doth not disturb the public peace, or obstruct others
in their religious worship.” It is structured like Article I, § 3 of the
North Dakota Constitution. Article 46, § 1 is a duplicate of the
38
federal free exercise clause. Prior to Smith, the Supreme Court of
Massachusetts applied a balancing test to both clauses. “[T]he
constitutionality of a law that would interfere with the exercise of
religion must depend on a balancing of the State's interest in the
law's enforcement against the individual's interest in practicing his
religion as he chooses.” Com. v. Nissenbaum, 536 NE2d 592, 595
(Mass. 1989). Under Article 46, § 1, the court adopted the
compelling interest test. Under Article 2, it used a similar
“competing interests” test to recognize the balancing effect of the
proviso clause. In the aftermath of Smith, the court retained its own
analysis of these provisions. Calling Smith “a much criticized opinion
that weakened First Amendment protections for religious conduct,”
the court stated flatly:
In interpreting art. 46, § 1, we prefer to adhere to the standards of earlier First Amendment jurisprudence, such as we applied in [citing state cases]. In each opinion, we used the balancing test that the Supreme Court had established under the free exercise of religion clause in [Yoder/Sherbert] and subsequent opinions.
Attorney General v. Desilets, 636 NE2d 233, 236 (Mass. 1994). See
also Curtis v. School Committee of Falmouth, 652 NE2d 580, 587 n.
10 (Mass. 1995) (“claims based on art. 46, § 1, are to be analyzed
under the Supreme Court's First Amendment jurisprudence as it
existed prior to [Smith]").
5. Wisconsin
39
Responding to criticism that it was subordinating the state
constitution's protection for religious freedom to federal law, the
Wisconsin Supreme Court in State v. Milter, 549 NW2d 235 (Wis. 1996)
clearly affirmed the opposite. “[O]ur decision today is firmly grounded on
the Wisconsin Constitution alone.” Id. at 240 n.8. Article I, § 18 of the
Wisconsin Constitution is quite similar to Article I, § 16 of the Minnesota
Constitution. In this Amish buggy case, the court acknowledged
Hershberger, id. at 238-240, and adopted the same compelling
interest/least restrictive means test for free exercise claims under its
state constitution. In State by Cooper v. French, 460 NW2d at 9, the
Minnesota high court surveyed the common religious liberty heritage of
the two states.
Conceding that in previous cases it had interpreted Article I, § 18 “in
light of United States Supreme Court cases,” the court corrected any
misapprehension:
[T]hat statement should not be read as an abandonment of our long-standing recognition that the language of the two documents is not the same. Some questions cannot be fully illuminated by the light of federal jurisprudence alone, but may require examination according to the dictates of the more expansive protections envisioned by our state constitution.
State v. Miller, 549 NW2d at 239. Acknowledging that “in 1990, the
United States Supreme Court repudiated use of the compelling state
40
interest standard in claims based solely on the Free Exercise Clause of
the First Amendment,” id. at 240, the court then reclaimed that standard
for state constitutional claims, quoting Hershberger to the same effect.
In assessing previous free conscience and free exercise challenges, this court, and the court of appeals, have utilized the principles and analytical framework developed by the United states Supreme Court in Sherbert, Yoder, and Thomas, (citations omitted) We conclude that the guarantees of our state constitution will best be furthered through continued use of the compelling interest/least restrictive alternative analysis of free conscience claims and see no need to depart from this time-tested standard.
Id. at 240-41. Accordingly, Wisconsin, like Minnesota, granted the
Amish plaintiff an exemption from the orange triangle law.
The Wisconsin Supreme Court, like the other state courts cited
above, continued to apply strict scrutiny to state free exercise
claims despite the abandonment of this standard by the U.S.
Supreme Court for comparable federal claims.
D. Pre-statehood California case law
Pre-1889 California cases are of particular interest because they
were in existence at the time of the adoption of the North Dakota
Constitution.
Courts in construing constitutional or statutory provisions from another state almost invariably hold that the Legislature or the Constitution makers are presumed to have adopted it with knowledge of the construction or interpretation given it by the courts of the state whence it comes, and to have adopted such construction or interpretation.
41
State v. Blaisdell. 119 NW 360, 365 (N.D. 1909). See similarly
State v. Jacobson, 545 NW2d 152, 154 (N.D. 1996): “[W]hen a statute
is adopted from another State it is presumed the legislature adopted
the construction previously placed upon it by the courts of the
State from which the statute was taken.” Pre-1889 California cases
construing its religion freedom clause are limited to analysis of
Sunday closing laws. They do not examine in detail the specific
language of the California Constitution or compare it with the sparer
federal amendment. In that sense they are quite different from
recent cases which stress the significant differences and broader
coverage of state clauses versus the First Amendment.
The pre-1889 California cases, of course, had no cause to examine the
First Amendment's religion clauses, which were first applied to the states
in Cantwell v. Connecticut, 310 US 296 (1940). Sunday closing law cases,
both early and modem, almost uniformly uphold a legislatively-enacted
day of rest as an appropriate use of the police power for a secular
purpose. In Ex parte Andrews, 18 Cal. 678 (1861), the court upheld a
Sunday Sabbath law against a challenge under article I, § 4 of the
California Constitution, the predecessor of Article I, § 3 of the North
Dakota Constitution. While stating that the statute in question was
understood to be “an interdict against all legislation which invidiously
discriminates in favor of or against any religious system,” id. at 684, the
42
court validated the enactment in language which might today be
considered a violation of the Establishment Clause.
It does not interdict all legislation upon subjects connected with religion; much less does it make void legislation, the effect of which is to promote religion or even advance the interests of a sect or class of religionists.
Id.
Ex parte Burke, 59 Cal. 6 (1881) and Ex parte Koser, 60 Cal. 177
(1882) were cited by Justice Spaulding in State v. Barnes, 132 NW at
218, as showing “the construction of the highest court of California of its
provisions prior to its adoption into our Constitution.” The Burke court
quoted Chancellor Kent as follows:
[T]he free exercise and enjoyment of religious profession and worship may be considered as one of the absolute rights of individuals, recognized in our American constitutions, and secured to them by law. Civil and religious liberty generally go hand in hand, and the suppression of either of them, for any length of time, will terminate the existence of the other. The principle is generally announced in [state constitutions] without any kind of qualification or limitation annexed . . .
Ex parte Burke, 59 Cal. at 13. The court then stated unequivocally that if
the Sunday law “now under consideration does in any manner interfere
with the free exercise and enjoyment of religious profession and worship,
it is unconstitutional and absolutely void.” Id. (emphasis in original). The
law was then upheld as a valid secular enactment which did not compel
any particular form of worship. Ex parte Koser raised the question
whether a Sunday law “discriminates in favor of the Christian religion
43
against other religions.” Id. at 198 (opinion of McKee, J.). The court again
found that the day of rest was established for a secular and not for a
religious purpose. Although the businesses forbidden to operate were
such as tended to be immoral, “where is the violation of any provision of
the Constitution in prohibiting on a day established by the State as a day
of rest, such acts of licentiousness, profanity and disorder as are
calculated to shock the moral sense of the community, or to disturb the
rest established by law?” Id. at 199. Such prohibition “does not interfere
with any man's liberty of conscience.” Even if the prohibitions are
directed at “acts which are offensive to public morals according to the
standard of Christianity . . . it does not violate the religious rights of
others who do not call themselves Christians.” Id. “No court has ever held
that the Legislature may not pass laws to protect good morals.” Id.
(opinion of Thornton, J.).
Modern cases use similar reasoning to reach the same result.
Braunfeld v. Braun, 366 US 599 (1961) (no Sunday exemption for Jewish
merchant who observes Saturday as sabbath); McGowan v. Maryland,
366 US 420 (1961) (establishment clause analysis); State v. Gamble
Skogmo, Inc., 144 NW2d 749 (1966) (same). Since Sunday law cases tend
to deny observers of a different sabbath a free exercise exemption, they
lean towards a Smith analysis. Insofar as they examine the establishment
clause, they are not relevant to the current analysis. In any case, they
have comfortably co-existed with cases employing Sherbert/Yoder
44
scrutiny. The application of the test does not guarantee the outcome.
Thus, the incorporation of California Sunday law cases into the North
Dakota Constitution in 1889 indicates little more than what Justice
Spaulding found in Barnes: Article I, § 3 of the North Dakota
Constitution is not incompatible with Sunday closing laws.
E. The Home School Cases
Because of the strict scrutiny Sherbert/Yoder standard that governed
free exercise cases under the federal constitution prior to Smith, almost
all religious freedom claims, whether brought in federal or state court
(e.g., as a defense to criminal charges), arose under the First
Amendment. If the state constitution was mentioned, it was merely for
sake of completeness, but rarely, if ever, engendered an independent
analysis. There was no incentive to seek a separate meaning in state law
for rights which already had exemplary protection under federal law.
Therefore, customarily, any such mention encompassed no more than an
affirmation that the state constitution placed the same high value on
religious freedom as the federal. In this regard North Dakota mirrored its
sister jurisdictions.
A series of seven home school cases in the 1980's caused the court to
analyze federal free exercise jurisprudence in some detail with occasional
glancing mentions of the state constitutional equivalents. In State v.
Shaver, 294 NW2d 883 (N.D. 1980), the court applied a detailed and
careful analysis of the Sherbert/Yoder standard to a claim of religious
45
exemption from state teacher certification. The court quoted from Yoder.
“[A] regulation neutral on its face may, in its application, nonetheless
offend the constitutional requirement for governmental neutrality if it
unduly burdens the free exercise of religion.” Id. at 893 (citation omitted).
Thus, the court freely embraced “the difficult and sensitive task of
striking the delicate balance between the free exercise of religious
liberties and the pursuit of reasonable governmental regulations.” Id. at
889. “The Sherbert decision broadened the coverage of the free exercise
clause and increased the state's burden to justify infringements on the
free exercise of religion.” Id. at 890. Once an infringement upon religious
liberty was found, the state must demonstrate a compelling state
interest. “[A]lternative means” must also be explored “by which the state
could achieve its objective through the imposition of a lesser burden on
religion.” Id. The court also described this latter requirement as “whether
or not the least restrictive or ‘less drastic’ means to accomplish the
objective have been utilized.” Id. at 895. The court referred in its opinion
to “N.D.Const. § 4” without comment. Id. at 888. In his concurrence,
Justice Sand stated:
In my opinion, this Court has high regard and respect for religion—which I share—and recognizes the constitutional guarantees of the free exercise of religion. First Amendment, United States Constitution, and sections 4 and 23, North Dakota Constitution. This constitutional right, as well as the others, need to be balanced with the State's interests and rights . . . .
Id. at 901 (emphasis added). Justice Sand appears to be treating the
46
state and federal guarantees as indistinguishable and considering the
strict scrutiny federal standard to be equally applicable under the state
provisions.
In State v. Rivinius, 328 NW2d 220 (N.D. 1982), the court reiterated
that free exercise challenges require “a delicate balance to accommodate”
both civil and religious values. Id. at 224. The court referred to Shaver
and stated: “we applied the constitutional analysis and approach utilized
in [Yoder] and [Sherbert] . . . ” Id. The court emphasized the “least
restrictive means” requirement.
Whenever legitimate legislative objectives are expressed in a statute which imposes a substantial burden on an interest protected by the First Amendment, the legislature must achieve its goal by means which have the least restrictive or “less drastic” impact on the First Amendment freedoms.
Id. at 227. The cited cases for this proposition included Shaver and
significantly a number of free speech cases, indicative that to the North
Dakota Supreme Court all First Amendment claims—speech or religion—
were entitled to heightened scrutiny. The court made explicit this
evaluation later in the opinion where it stated: “(T]he constitutional
guarantees of religious freedom rank equal with the constitutional
provisions relating to free speech and press.” Id. at 229. Arguably,
therefore, the North Dakota Supreme Court has adopted a unitary
standard of strict scrutiny for all First Amendment claims.
The court recognized the cognate status of these guarantees under the
47
North Dakota Constitution as well, measuring them together against the
provisions on education.
The North Dakota constitutional provisions relating to education have at least equal standing with Article I, § 3 and § 4 of the North Dakota Constitution guaranteeing freedom of religion and freedom of speech and press.
Id. at 228. Having found all of these interests to be of high standing, the
court concluded:
[T]he interest of the state and the interests of individuals regarding their religious beliefs or convictions must be harmonized and balanced with the interests of the state so as to preserve the separate interests as much as possible without infringing upon the respective rights more than is necessary. The interests of neither one is absolute.
This conclusion is necessarily a commentary upon the state
constitution because there is no education provision in the United States
Constitution. Therefore, insofar as case law provides any guidance, and
the analysis is somewhat indirect, the religion clauses of the North
Dakota Constitution state fundamental rights which are subject to a
balancing test when opposed to comparable governmental interests.
“[T]he state's interest is not free from a balancing process when it
impinges on fundamental rights and interests such as the free exercise
clause of the First Amendment.” Id. at 228.
James E. Leahy has taken note of the additional statement that when
Article I, § 3 was adopted, “it was in harmony with the First Amendment
to the United States Constitution.” Id. at 229.
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In Rivinius, the court acknowledged that section 3 is in harmony with the First Amendment. It therefore seems safe to predict that the court will adopt the United State Supreme Court's balancing approach used in Yoder in deciding similar free exercise cases.
James E. Leahy, “Interpreting the Constitution,” 65 North Dakota Law
Review 491, 500 (1990). The Attorney General in commenting on the
meaning of Article I, § 3, took a more cautious approach:
The free exercise clause of the North Dakota Constitution, however, has received little judicial comment and, as yet, North Dakota jurisprudence has not expanded protection of religious practices beyond that granted by the United States Constitution. . . . It is, however, acknowledged that the free exercise clause of the North Dakota Constitution is undeveloped by case law. Consequently, it is possible that it could be interpreted in a future decision by the North Dakota Supreme Court to grant broader religious rights than does the federal free exercise clause.
1988 N.D. Op. Atty. Gen. 127.
As stated above, this issue was of no practical import for the states as
long as the strict scrutiny standard of Sherbert/Yoder was federal law.
After Smith and before RFRA, almost every state that had to face the
issue continued to apply under state constitutional law the high federal
standard that had previously prevailed, refusing to adopt Smith simply
because federal law had changed course. In so doing, the states affirmed
that their own constitutional provisions had marched in the shadow of
federal jurisprudence only because that law upheld a standard they
49
considered imperative. When federal law veered away from that high
protection for religion, they refused to follow—showing that their state
constitutions would defer to federal interpretations only when those
cases were faithful to the rights they were holden to protect.
State v. Patzer, 382 NW2d 631 (N.D. 1986), followed Shaver and
Rivinius. No mention was made of the state constitution except to note
that the topic had not been sufficiently briefed to warrant analysis. Id. at
639 n. 5. Once again the Sherbert/Yoder test was applied: “Only a
compelling state interest can justify burdening the free exercise of
religion and the state must bear the burden of demonstrating the
unavailability of less restrictive means of achieving its aims.” Id. at 636.
In State v. Anderson, 427 NW2d 316 (N.D. 1988), the court again
balanced civil and religious claims: “If the state has a compelling interest
which justifies the burden on the free exercise of religion, the state must
demonstrate that the regulation constitutes the least restrictive means . .
. .” Id. at 322. Justice Meschke dissented from the result, arguing that
the court's application of the test put a burden of justification on the
exercise of religion that properly belonged on the state.
When government seeks to use the compulsion of our criminal laws to override sincerely held religious beliefs, painstaking judicial review is essential if freedom of religion is to be truly meaningful—more than a high sounding phrase emptied of purpose by majoritarian winds, as in some nations.
Id. at 325.
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Justice Meschke placed the burden on the state to show how its
interest would be impaired by granting a religious exemption.
Our responsibility is to strictly scrutinize the need for the state's purpose to prevail over sincere religious convictions. . . . In this sensitive constitutional area, the burden of persuasion should be on the influential State . . . .
Id. at 326-27. The import of Justice Meschke's dissent is to suggest that
the court in practice was being too deferential to asserted state interests.
The issue was not whether the state burden on religion was tolerable,
but whether accommodation of religion would “seriously undermine” the
state program. Id. at 327. A footnote in Anderson noted that the
appellants had not made a free exercise argument “under parallel
provisions of the North Dakota Constitution.” Id. at 322 n.3.
State v. Melin, 428 NW2d 227 (N.D. 1988), applied a compelling
interest/least restrictive means analysis without any mention of the state
constitution. Justice Meschke dissented, largely on other grounds, but
also citing Anderson. State v. Toman, 436 NW2d 10 (N.D. 1989),
paralleling the previous religion cases, included a “least restrictive
means” consideration. State v. Brewer, 444 NW2d 923 (N.D. 1989)
concluded this line of North Dakota free exercise cases. Although it
focused on a due process question, Justice Meschke in dissent stated:
“[T]he State has wholly failed to show that its compulsory education
program would not work if it granted a religious exemption to these
51
defendants.” Id. at 926.
Brewer was decided August 21, 1989. In April of 1990, eight months
later, the Supreme Court substantially swept away the Sherbert/ Yoder
test for free exercise claims, retaining it only for a limited category of
exceptions—hybrid cases, individualized exemption statutes, and non-
neutral, non-generally-applicable laws. Since April, 1990, there have
been no North Dakota free exercise cases to address the post-Smith
meaning of the state constitution or even undertake a RFRA analysis.
Therefore, we are left with the situation common to most other states
after Smith: does a state constitution that followed federal law in the
adoption of a compelling interest/least restrictive means analysis simply
continue on course with that determination despite the shifting of
ground in federal case law? Almost every state to consider this question
has answered it affirmatively. The retraction of federal rights has simply
brought into relief the independent capabilities of the state constitution
formerly hidden in the shadow of heightened federal protection.
VI. Free Exercise under the North Dakota Constitution
A. Preservation of “Compelling Interest” Test
The post-Smith experience of the states in interpreting the religion
clauses of their constitutions leads inescapably to the conclusion that
the adoption by the North Dakota Supreme Court in the 1980's of a strict
scrutiny/balancing test methodology for free exercise claims is not in the
least modified by the federal abandonment of this test. In Shaver (Sand
52
concurrence) and Rivinius (majority opinion), the court indicated that the
state constitution tracked federal law in the area of religious rights. Even
though federal law has diverged from that track, state constitutional law,
which is not affected by the Supremacy Clause when it surpasses the
federal minimum, is unaffected by this shift. “The fact that those
opinions cited federal law that subsequently took a divergent course does
not diminish their usefulness as precedent.” Robins v. PruneYard
Shopping Ctr., 592 P.2d 341, 346 (Cal. 1979). In a Fourth Amendment
case, facing a Supreme Court decision that weakened warrant
protections, the New York Court of Appeals did not hesitate to invoke its
existing precedent which had followed previously stronger, but now
abandoned, federal case law.
An independent construction of our own State Constitution is particularly appropriate where a sharp or sudden change in direction by the United States Supreme Court dramatically narrows fundamental constitutional rights that our citizens have long assumed to be part of their birthright.
People v. Scott, 593 NE2d 1328, 1342 (N.Y. 1992). “But where we
conclude that the Supreme Court has changed course and diluted
constitutional principles, I cannot agree that we act improperly in
discharging our responsibility to support the State Constitution!.]” Id. at
1347 (Kaye, J., concurring).
In State v. Kennedy, 666 P.2d 1316 (Or. 1983) the Oregon Supreme
Court elaborated on this principle:
53
When this court gives Oregon law an interpretation corresponding to a federal opinion, our decision remains the Oregon law even when federal doctrine later changes. . . . A state's view of its own guarantee . . . may be the same as the federal rule at the time of the state court's decision, which of course does not prevent that the state's guarantee will again differ when the United States Supreme Court revises its interpretation of the federal counterpart. . . . [A] state's constitutional guarantees . . . remain genuine guarantees against misuse of the state's governmental powers, truly independent of the rising and falling tides of federal case law . . . .
Id. at 1321, n.8, 1323. Justice Levine quoted this passage in her dissent
in State v. Jacobson, 545 NW2d 152, 156-161 (N.D. 1996). Concurrences
of Justices VandeWalle and Meschke indicate that her views on this
point had majority support. Justice Sandstrom in concurrence did not
reach this general issue, nor did Justice Neumann's opinion for the
court.
The New Mexico Supreme Court, looking at federal double-jeopardy
precedents, arrived at the same conclusion as the Oregon court.
We have stated that our state Constitution's double jeopardy provision is subject to the same construction and interpretation as its counterpart in the Fifth Amendment to the United States Constitution. That does not mean, however, that we must embrace United States Supreme Court precedent when it changes a standard formerly adopted by this court. . . . [W]hen this court derives an interpretation of New Mexico law from a federal opinion, our decision remains the law of New Mexico even if federal doctrine should later change.
54
State v. Brett, 930 P.2d 792, 800-801. Justice VandeWalle's concurrence
in State v. Jacobson, 545 NW2d at 153, is of similar import: “It is
improvident to hold that a North Dakota constitutional provision will
always be construed the same as a similar provision in the United States
Constitution.”
Since Article I, § 3 of the North Dakota Constitution derives from the
New York Constitution of 1777, its source text predates the Bill of Rights
by 14 years, the U.S. Constitution by 10 years, and is only one year
younger than the Declaration of Independence. As such, the First
Amendment is beholden to it, and not the other way around. Thus, if
there is any question as to deference between the respective state and
federal religion clauses, the preference should go to the North Dakota
formulation. The compelling interest/least restrictive means test applied
as federal law in the 1980's and adopted also as the construction of N.D.
Con. Art. I, § 3, should therefore remain the standard for free exercise
claims brought under the state constitution.
B. “Competing Interests” Test
The North Dakota Supreme Court has stressed that “the interest of
the state and the interests of individuals regarding their religious beliefs
or convictions must be harmonized and balanced . . . to preserve the
separate interests as much as possible . . . .” State v. Rivinius, 328 NW2d
at 229 (emphasis added). As the context indicated, this was a comment
55
on the meaning of Article I, § 3 of the North Dakota Constitution. Other
state courts have employed a “competing interests” test to explicate the
affirmative rights/proviso clauses in their state constitutions. Unlike the
First Amendment which simply prohibits certain governmental action,
these state clauses first affirm the religious guarantee and then qualify it
with a proviso as to licentiousness/peace-and-safety, but sometimes with
additional qualifiers as well. See, e.g., Florida (“public morals”); Idaho
(“bigamy”, “polygamous or other pernicious practices”, “dispens[ing] with
oaths or affirmations” not exempt); Illinois (“oaths or affirmations”);
South Dakota (“invasion of the rights of others”). These specific qualifiers
set out the state interests that legitimately compete on a constitutional
level with the affirmative right that is “forever guaranteed” (Colorado,
Idaho, Illinois, North Dakota, Wyoming), “guaranteed” (California,
Washington), “secured” (New Mexico, North Dakota, Oklahoma), “forever
allowed” (Nevada, New York) or “shall never be infringed” (Minnesota,
South Dakota, Wisconsin). The “competing interests” test may appear at
first view perhaps to be less demanding than the “compelling
interest/least restrictive means test.” As we shall see below, the two in
practice are the same. Both analyses grant constitutional status to free
exercise claims that Smith does not recognize.
1. O'Connor dissent
Justice O'Connor in her Flores dissent analyzed colonial charters that
contained religious freedom proviso clauses: “These colonies appeared to
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recognize that government should interfere in religious matters only
when necessary to protect the civil peace or to prevent ‘licentiousness.’ In
other words, when religious beliefs conflicted with civil law, religion
prevailed unless important state interests militated otherwise.” City of
Boerne v. Flores (U.S. 1997) (O'Connor, J., dissenting). She then looked
at a number of post-1776 state constitutions including the New York
Constitution of 1777, which, of course, is the source of Article I, § 3 of
the North Dakota Constitution.
The precise language of these state precursors to the Free Exercise Clause varied, but most guaranteed free exercise of religion or liberty of conscience, limited by particular, defined state interests. . . . The language used in these state constitutional provisions . . . strongly suggests . . . that the right to “free exercise” required, where possible, accommodation of religious practice. If not . . . there would have been no need for these documents to specify, as the New York Constitution did, that rights of conscience should not be “construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of [the] State.” Such a proviso would have been superfluous. Instead, these documents make sense only if the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.
Id.
Examining the debate over the Virginia Declaration of Rights, Justice
O'Connor similarly concluded that “when there was a conflict, a person's
interest in freely practicing his religion was to be balanced against state
interests.” Id. This is precisely the test set down by the North Dakota
Supreme Court in Rivinius. Neither civil nor religious interests were to be
57
given priority but both were to be “harmonized and balanced . . . to
preserve the separate interests.” Id. at 229. This approach is in keeping
with the preamble of the North Dakota Constitution which creates a
parity between “civil and religious liberty.” The accommodation model
also appears in Justice Sand's concurrence in Shaver, where he
expressly references the state constitution. “This constitutional right
needs to be balanced with the State's interest . . . .” Id. at 901. See also
State v. Patzer, 382 W2d at 636 (“process of constitutional balancing”).
Other states, which have independently construed their state religion
clauses after Smith, have gone beyond simply retaining their
Sherbert/Yoder analyses and have delved into the rich language of their
state provisions to adopt reasoning similar to that of Justice O'Connor.
2. Massachusetts
The Massachusetts Supreme Court, construing its affirmative
right/proviso religion clause (Article 2), stated:
[T]he literal absoluteness of Art. 2's guarantee . . . is not expanded by the proviso. . . . Rather, the proviso contemplates and requires a balancing of the individual's interest in religious freedom with the State's interest in preserving the public peace.
Commonwealth v. Nissenbaum, 536 NE2d at 595. The court then stated
in Smith-like language that all violations of law by definition invoke the
proviso, but departed from Smith in not thereby automatically denying
the religious exemption, but instead commencing a balancing analysis
58
between the two clauses. Id. at 595-96. Justice Liacos in dissent
demonstrated that historically disturbance of the peace is a specific
crime which requires a victim, not simply a generic definition
encompassing the violation of any law whatsoever. Id. at 601-02. The
broad interpretation of the proviso by the Massachusetts court in
Nissenbaum may have been related to the facts under scrutiny, namely a
claim of religious exemption for marijuana-smoking. Drug exemption
cases are notorious for setting bad religious precedent. Smith itself was a
peyote case. As Justice Blackmun stated in dissent: “One hopes the
Court is aware of the consequences, and that its result is not a product
of overreaction to the serious problems the country's drug crisis has
generated.” Employment Division v. Smith, 110 S.Ct. at 1616.
In Society of Jesus v. Boston Landmarks, 564 NE2d 571 (Mass. 1990),
the Massachusetts free exercise jurisprudence returned to more familiar
boundaries. After proclaiming the affirmative clause of art. 2 to be “an
uncompromising principle,” id. at 573, the court stated that renovation of
a church interior “is not exempted from art. 2 protection by the provisos
permitting regulation of conduct that disturbs the public peace or
obstructs the religious worship of others.” The court defined disturbing
the peace as “unreasonable disruptiveness plus infringement on
someone's right to be undisturbed.”
[T]he religious conduct burdened by the State . . . neither disturbs the public peace nor obstructs the religious worship of others. Thus, the challenged action fits neither of the
59
escape provisions in art. 2, and cannot evade the sweep of art, 2's categorical prohibition against government restraints on religious worship.
Id. at 574. The court's reasoning here clearly limits the proviso to a
certain subset of state law. The landmarks law did not fit within this
definition. Therefore, the guarantee clause prevailed. Distinguishing
Nissenbaum, the court stated: “[I]f religiously motivated conduct disturbs
the public peace,” then a “balancing” test “[w]eighing the competing
interests” is appropriate. Id. at 574 (emphasis in original).
The court thus indicated that even when the proviso clause is
legitimately invoked, even when the particularized legal condition is met,
the outcome is still subject to a balancing analysis. This is a long way
from Smith's bright-line choice of the civil law over religious rights
whenever a conflict occurs. Furthermore, under Massachusetts law,
when the proviso is not invokable, religion is automatically protected
against contrary state law, its absolute quality being constitutionally
unchallenged.
If neither exception applies, by its terms, art. 2 gives absolute protection to the manner in which one worships God. No balancing of Interests, the worshiper's, on the one hand, and the government's, on the other, is called for when neither exception applies.
Attorney General v. Desilets, 636 NE2d at 242. When the proviso is not
applicable, conduct is “constitutionally protected absolutely.” Id.
Massachusetts, as mentioned earlier, has two religion clauses, one a
60
model of the First Amendment (Article 46, § 1) and the other a traditional
affirmation/proviso clause (art. 2). In Desilets, the court compared the
two standards: “[T]he competing interests standard under art. 2 is no
more favorable . . . than the requirement under art. 46, § 1, that the
Commonwealth demonstrate a compelling State interest . . .” Id. at 243.
Thus, the court indicated that a constitutional provision like that of
North Dakota is appropriately analyzed under a sui generis “competing
interests” standard rather than the pre-Smith federal compelling interest
standard. This results comports with the North Dakota Supreme Court's
analysis in Rivinius.
3. Minnesota
Minnesota has defined its religion clause, which contains a proviso
identical to that of North Dakota, to require a similar “competing
interests” analysis. “The plain language of this section commands this
court to weigh the competing interests at stake whenever rights of
conscience are burdened.” State by Cooper v. French, 460 NW2d at 8.
“Our ‘peace and safety’ clause invites the traditional First Amendment
balancing test[.]” State v. Hershberger, 462 NW2d at 400 (Simonett, J.,
concurring). As the majority concluded: “Competing values . . . require
this court to look for an alternative that achieves both values articulated
in section 16.” Id. at 399.
4. Washington
Justice Utter of the Washington Supreme Court emphasized the
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importance of construing state constitutional clauses on the basis of
their own language, as distinct from importing a federal test. “A truly
independent state constitutional discourse cannot occur if we resort
solely to federal jurisprudence in defining rights protected under our
state constitution.” First Covenant Church v. Seattle, 840 P.2d at 191
(Utter, J., concurring). He then offered an interpretation of Washington's
affirmation/proviso religion clause “which focuses on the unique text of
that provision.” Id. He noted that the first clause grants “affirmative
rights that are absolute” that may be counterbalanced only by “one of the
limited, countervailing governmental interests” listed in the proviso
clause. A compelling interest analysis under the state constitution,
therefore, was not necessary when the state's interest did not fall within
the listed exceptions, viz., it is not “the type of interest which can be
furthered at the expense of religious liberty.” Id. at 192.
C. Summary
A balancing analysis under an affirmation/proviso religion clause
does not begin until the state interest qualifies for recognition under the
proviso clause. When the state interest qualifies, then by virtue of the
offsetting clauses, the court is to seek to accommodate the competing
values that both may be satisfied. The proviso clause in effect states that
subset of state law which may be considered to embody “compelling
governmental interests.” This is the stance of the North Dakota Supreme
Court in Rivinius and should be applied as established precedent in
62
evaluating free exercise claims under the North Dakota Constitution.
Whether the court has “imported” into article I, § 3 the pre-Smith First
Amendment balancing test or has independently reached a comparable
result by independent analysis of the state language, the result is
similar. An early North Dakota case interpreted what is now Article I, § 3
in language resonant of the conclusions reached by states that have
independently analyzed their own religious freedom provisions. “[N]o
human authority has a right, even in the slightest way, to interfere with
[an individual's conscience], so long as his practices in carrying out his
particular views are not inconsistent with the peace and good order of
society.” Bendewald v. Ley, 168 NW 693, 696 (N.D. 1918), quoting Mack
v. Kime, 58 SE 191. As was said during the First Amendment debates in
1789: “[T]he rights of conscience are, in their nature, of peculiar delicacy,
and will little bear the gentlest touch of governmental hand.” I Annals of
Cong 730, quoted in Braunfeld v. Brown, 366 US at 616 (Brennan, J.,
dissenting).
Free exercise of religion is a constitutional value of independent
primacy which can be overcome only upon a showing that state interests
(1) are of a quality that can claim an override of religious freedom and (2)
cannot otherwise be achieved. Arguably under the state constitution, the
test is even more stringent, since certain competing state interests are
not entitled to be weighed in the balance, only those stated in the proviso
clause. This analysis, however, partly coincides with Yoder's requirement
63
that there must be “a state interest of sufficient magnitude to override the
interest claiming protection under the Free Exercise Clause.” Wisconsin
v. Yoder, 406 US at 214 (emphasis added). “[O]nly those interests of the
highest order and those not otherwise served can overbalance legitimate
claims to the free exercise of religion.” Id. at 215. A proviso clause in
effect states with specificity what these “interests of the highest order”
are under a particular state constitution. The “not otherwise served”
qualifier indicates that an effort should first be made to accommodate
both secular and religious interests that, if possible, both may be served.
This “accommodation” test is identical to what state courts have
concluded in analyzing affirmation/proviso clauses. Implicit in this
analysis is the equivalent of a least restrictive means test.
Accommodation of the state's interest must be achieved with the least
disturbance of the religious practices and values at issue.
Although Sherbert and Yoder no longer have freestanding force under
the federal constitution, their precedential power is undiminished in
states that have incorporated them into their state religion clauses. See,
e.g., Massachusetts: “The Nissenbaum opinion imported into art. 2
analysis the balancing test that then applied under the First
Amendment's free exercise of religion provision.” Attorney General v.
Desilets, 636 NE2d at 242 n.2 (emphasis added). This importation theory
in effect incorporates a RFRA analysis into the state constitution by
reason of adoption of previous federal precedent. But see City of Boerne v.
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Flores (least restrictive means analysis not required in every case pre-
Smith). Independently of such incorporation or adoption, however, the
affirmation/proviso language of the North Dakota Constitution, similar to
that of many other states, provides an independent basis to conduct an
equivalent test. Thus, the pre-Smith, RFRA, and state tests in practice
converge. “The Supreme Court generally interpreted the compelling
interest test as a requiring a balancing of the state's interests with the
burden on the individual's free exercise of religion.” State v. Miller, 538
NW2d at 579 (Sundby, J., dissenting on other grounds). The competing
interests test, which flows naturally from the language of state
affirmation/proviso clauses, contains in practice the same elements as
the compelling interest/least restrictive means test. Under either
analysis religion would occupy a preferred position under the North
Dakota Constitution, as it does in virtually every other state that has
addressed the question.
VII. Conclusion
The religious freedom clauses of the North Dakota Constitution
require that the compelling interest/least restrictive means test or an
equivalent “competing interests” analysis be applied to all free exercise
claims.