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COPYRIGHT 2000 Harvard Society for Law and Public Policy, Inc.
I. INTRODUCTION
The diversification of American society has increased the prospect that an individual will suffer discrimination at the hands of government on the basis of religion. Our polity arguably has matured to the point where official discrimination is less likely to be inflicted through intentional wrongdoing.(1) On the other hand, the mushrooming of the number and variety of religious faiths has increased the probability that a secular law, meant to apply to the entire citizenry in a nondiscriminatory fashion, will conflict with the religious practices of adherents of non-mainstream faiths whose beliefs and practices were unknown to the legislators.
Odd as it may seem for a nation founded in part upon the desire to be unleashed from the shackles of conformity to a single religion, the struggle for legal protection of religious liberty of minority faiths persists as we enter the new millennium. Ironically, the greatest threat to the ability of members of non-mainstream religions to adhere to their tenets arose in the past decade as a result of two decisions of the United States Supreme Court -- Employment Division v. Smith(2) and City of Boerne v. Flores.(3) Federal statutes designed to countermand the dilution of religious freedom triggered by these decisions continue to be floated, but even if passed, they face serious constitutional hurdles. The very constitutional obstacles to these federal proposals, however, afford affirmative support for state religious freedom non-restoration acts that maximize the ability of all individuals to be faithful to their religion.
II. THE DWINDLING PROTECTION OF MINORITY RELIGIOUS LIBERTY UNDER THE UNITED STATES CONSTITUTION
Ten years ago, there was no cause to look beyond the United States Constitution to secure religious liberty for worshipers of minority faiths. As of 1990, the United States Supreme Court had consistently interpreted the Free Exercise Clause of the First Amendment(4) to afford maximum protection of all individuals whose religion was compromised by requirements of generally applicable laws. The Court solidly endorsed a strict scrutiny test to gauge the constitutionality of legislative or other governmental measures that had the purpose or effect of invading the free exercise of religion.(5) The Court's test demanded that the person claiming a constitutional deprivation first prove that she had a sincerely-held religious belief that the government had infringed. In assessing whether the plaintiff had satisfied her burden, the Court was quite solicitous of minority religious precepts. The Court refused to inquire into the centrality of the belief to the individual's religion or the validity of the individual's interpretation of that belief.(6) The plaintiff was not required to establish that her dogmas were consistent, logical or acceptable to others.(7) To the contrary, the courts were instructed to accept a belief as religious even where the article of faith was not shared by all members of the sect or was even "rank heresy to followers of the orthodox faiths."(8)
While deferential to the individual's claimed religious belief, the Court was quite rigorous in evaluating the government's contention that the demands of civil society trump the individual's religious obligation. To sustain the burden on the religious exercise, the government had to prove both that a) it had a compelling governmental interest, and b) the government's compelling interest could not be satisfied by means less restrictive of the individual's religious beliefs.(9) The test applied even if the government in good faith enacted a general law that unintentionally and unknowingly impinged upon the practice of an individual's faith.
A. Abrogating Strict Scrutiny for Unintended Invasions of Religious Liberty--The Court's Smith Decision
In 1990, however, the United States Supreme Court diminished the safeguards afforded to non-mainstream faiths by the Free Exercise Clause in its 5-4 opinion in Employment Division v. Smith.(10) Smith arose out of the denial of unemployment benefits to two members of the Native American Church, who were fired from their jobs at a drug rehabilitation facility because they had ingested peyote during a church ceremony. Oregon law criminalized possession of peyote as a controlled substance and contained no exception for use of peyote for sacramental purposes. Finding that plaintiffs had been fired for work-related misconduct, the Employment Division of the Oregon Department of Human Resources ruled plaintiffs ineligible for unemployment compensation. Plaintiffs challenged the ruling, arguing that the Constitution precluded the government from conditioning public benefits on the sacrifice of religious practices.(11)
The Supreme Court refused to apply the compelling interest/no less restrictive alternatives test to the plaintiffs' Free Exercise claim. The Court held that, in ordinary circumstances, it would sustain a neutral and generally applicable law that had the effect of burdening an individual's religious beliefs as long as the government had a rational basis for passing the law. Courts were now to apply strict scrutiny to governmental measures that invaded religion only in three limited circumstances. First, the government must continue to satisfy the compelling interest/no less restrictive alternatives test in the rare instances in which it passed a law whose object "is to infringe upon or restrict practices because of their religious motivation."(12) Secondly, courts would utilize the heightened standard of review for what the Court termed "hybrid" violations -- governmental action that violated not only religious liberty but in addition trammeled upon a second fundamental right, such as freedom of speech.(13) Finally, the Court maintained strict scrutiny for government programs that have a protocol for affording exemptions from a law of general applicability but that deny an exemption to a religious objector.(14)
Mainstream religions will not likely suffer the erosion of religious liberty precipitated by Smith because they have the political clout to ensure that no majoritarian legislation is passed that inadvertently offends their religious tenets. Minority faiths, however, are easily victimized by uniform laws promulgated either in ignorance of, or indifference to, the fact that the laws burden their religious prescriptions.(15) Justice Scalia, writing for the majority in Smith, accepted this inequity as an inevitable by-product of the Court's approach to Free Exercise claims:
It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.(16)
In her concurring opinion, Justice O'Connor condemned the majority's offhanded discounting of minority belief systems. Justice O'Connor castigated the Court's abrogation of strict scrutiny for unintended burdens on religious liberty as "dramatically depart[ing] from well-settled First Amendment jurisprudence"(17) in favor of an approach that is antithetical to the Constitution's intended solicitude for non-mainstream religious beliefs:
The Court today suggests that the disfavoring of minority religions is an "unavoidable consequence" under our system of government and that accommodation of such religions must be left to the political process. In my view, however, the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah's Witnesses and the Amish.(18)
B. Post-Smith Interpretations of the Free Exercise Clause--Solidifying the Erosion of Religious Freedom
While individual Justices have volleyed attacks on Smith, prospects for judicially restoring strict scrutiny under the Free Exercise Clause remain dim. The United States Supreme Court reaffirmed the vitality of Smith in Church of Lukumi Babalu Aye, Inc. v. Hialeah.(19) The case arose out of a challenge to city ordinances that criminalized animal sacrifices. As a consequence of the ordinances, religious rituals of members of the Santeria religion, whose devotion to spirits is expressed through sacrifice of animals, were outlawed. The Church of the Lukumi Babalu Aye, whose congregants practice the Santeria religion, filed a civil action averring that these ordinances violated the Free Exercise Clause.(20)
The Supreme Court began its analysis by endorsing the watered-down standard of scrutiny adopted in Smith -- that a law that is neutral and generally applicable but that has the effect of burdening a religious practice need not be justified by a compelling governmental interest.(21) The Court found, however, that the Hialeah ordinances were neither neutral nor generally applicable; to the contrary, the object of the ordinances was to suppress the religious practices of the followers of the Santeria faith.(22) The city council accomplished this goal by selectively burdening only sacrifices motivated by religious beliefs while authorizing the killing of animals for secular purposes.(23) Thus, the Court subjected the legislation to strict scrutiny and concluded that the City of Hialeah's ordinances failed both prongs of the operable test. The city did not have a compelling interest in outlawing religious sacrifices and did not seek to achieve its objectives by means least restrictive of religious conduct.(24)
In his concurring opinion, Justice Souter plotted a roadmap for future litigants wishing to have the Court override Smith and restore strict scrutiny under the Free Exercise Clause for unintended burdens on religious liberty. Justice Souter dismissed as dictum the majority's purported affirmance of the Smith rule for neutral and generally applicable legislation that has the effect of burdening religion, as the ordinances in question were enacted with the purpose of invading the religious rituals of the Santeria.(25) Justice Souter then called for a wholesale re-examination of Smith in a future case that levied a constitutional attack on a law that had the effect, but not the purpose, of burdening religion.
In the balance of his concurring opinion, Justice Souter outlined why he believed it appropriate to reconsider Smith. First, Justice Souter analyzed at length why Smith could not be reconciled with the Supreme Court's precedents existing at the time that the Court issued the Smith opinion, precedents that the Smith Court did not overrule.(26) He then offered five reasons why principles of stare decisis do not preclude reconsideration of the Smith rule as it applies to neutral and generally applicable laws with the effect, albeit not the purpose, of burdening religion. First, neither the petitioner nor respondent in Smith had advocated abandonment of strict scrutiny for laws that unintentionally invaded the free exercise of religion.(27) Because the new test for Free Exercise claims was rendered without benefit of "`full-dress argument'" on that issue, the "constitutional rule announced sua sponte is entitled to less deference than one addressed on full briefing and argument."(28) Second, the precedential weight of Smith is further diminished by the fact that it was not necessary for the Smith Court to abrogate strict scrutiny in order to uphold the statute criminalizing use of peyote. Instead, the Court could have followed Justice O'Connor's reasoning and found that the state had a compelling interest that could not be satisfied by less restrictive alternatives.(29) Consequently, the new rule announced in Smith "approaches without more the sort of `dicta ... which may be followed if sufficiently persuasive but which are not controlling.'"(30) Third, because the new test adopted in Smith is in its infancy, the policy underlying stare decisis is weaker than if the decision had been relied upon over a substantial period of time.(31) Fourth, because the Smith Court did not overrule precedents that applied strict scrutiny to all Free Exercises claims, re-examination of Smith is not only wholly consistent with stare decisis, but also necessary to resolve "an intolerable tension in flee-exercise law."(32) Finally, Justice Souter justified his call for review of Smith by the fact that the Smith majority failed to consider the text and historic origins of the Free Exercise Clause of the United States Constitution.(33) While the claims in Church of Lukumi Babalu Aye did not present the opportunity to review the application of strict scrutiny to neutral and generally applicable laws that have the effect of burdening a religious practice, Justice Souter urged reconsideration in a case where the issue is squarely presented.
There is little reason to believe that the Court will accept Justice Souter's invitation to revisit Smith. Five Members of the Court -- Chief Justice Rehnquist and Justices Scalia, Stevens, Kennedy and Thomas -- reaffirmed Smith in Church of the Lukumi Babalu Aye. Of the four Justices who voted in Smith for retention of strict scrutiny for all Free Exercise claims, only Justice O'Connor remains on the Court. Justice Breyer, who replaced Justice Blackmun, has joined Justice Souter in advocating reconsideration of Smith.(34) On the other hand, Justice Thomas, having succeeded Justice Marshall, endorsed the Smith approach by joining the relevant part of the majority's opinion in Church of the Lukumi Babalu Aye.(35) Justice Ginsburg, who inherited the seat formerly occupied by Justice White, implicitly assumed the correctness of Smith in City of Boerne v. Flores.(36) At present, then, it is questionable whether any entreaty to the Court to reconsider Smith would command the four Justices necessary to grant certiorari, much less garner the majority needed to overrule the decision.
III. THE FEDERAL LEGISLATIVE RESPONSE TO SMITH
While federal judicial prospects for overruling Smith are dim, Congress has approved legislation to safeguard minority religions. Relying on its power under Section 5 of the Fourteenth Amendment,(37) Congress overwhelmingly passed the Religious Freedom Restoration Act of 1993 (RFRA).(38) Congress made no attempt to disguise the fact that it was enacting RFRA as a direct response to Smith. The statute includes Congress' finding that the Smith decision "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral towards religion."(39) The purpose of RFRA, set forth unambiguously in the statute, is "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened."(40)
As the title of RFRA suggests, Congress legislatively restored strict scrutiny for federal, state, and local governmental actions that have the effect of burdening the exercise of a person's religion, even if that burden was imposed through a law of general applicability.(41) The person whose religious exercise is infringed may assert a violation of RFRA "as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."(42) The government could justify the burden only if it demonstrates both a compelling governmental interest and the lack of any less restrictive means of furthering that compelling interest.(43)
RFRA manifests Congress's sensitivity to the inability of the political process to protect non-mainstream faiths. The Senate Report acknowledges that "[s]tate and local legislative bodies cannot be relied upon to craft exceptions from laws of general application to protect the ability of religious minorities to practice their faiths...."(44) The statute expressly recites Congress's finding that "laws `neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise."(45)
The Supreme Court dashed the promise RFRA afforded minority adherents when it declared the statute unconstitutional in City of Boerne v. Flores.(46) Boerne arose out of the city's denial of the Archbishop of San Antonio's application for a building permit seeking to enlarge his church to accommodate the growing number of parishioners. The Archbishop brought a civil action contesting the denial of the permit, which included a claim that the city of Boerne had violated RFRA.(47)
The Supreme Court's holding that RFRA was unconstitutional rested on two interrelated structural grounds. First, because Congress did not have the authority under Section 5 of the Fourteenth Amendment to enact RFRA, Congress disturbed the constitutional allocation of power between the federal government and the states.(48) Second, by attempting to countermand the Court's Smith decision, Congress offended the principles of horizontal separation of powers, invading the province of the judiciary.(49)
The first basis on which the Court declared RFRA unconstitutional was that Congress acted beyond its enforcement power conferred by Section 5 of the Fourteenth Amendment. The Court acknowledged that Congress has great discretion in selecting how to enforce the substantive provisions of Section 1 of the Fourteenth Amendment most effectively.(50) Although Congress may strive to deter or remedy violations by barring conduct that is of itself constitutional,(51) it is not empowered to expand the definition of the right itself.(52)
The Boerne Court concluded that RFRA was not an effort to redress documented instances of purposeful incursions on religious liberty -- the only invasions that, after Smith, the Free Exercise Clause demands be justified by compelling governmental interests.(53) Instead, Congress attempted to expand the reach of the Constitution by legislating strict scrutiny for unintended burdens on religious freedom created by neutral laws of general applicability. The Court found that the power improperly exerted by Congress was comparable to the federal legislative authority sought in the first draft of the Fourteenth Amendment authored by Representative Bingham. This initial draft assigned Congress the power to "make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities ... and ... equal protection in the rights of life, liberty and property."(54) The draft amendment was roundly opposed on the ground that it represented an unwarranted trespass upon the responsibility of the states).(55) Likewise, the Boerne Court reasoned, RFRA manifested "a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens."(56)
The Boerne Court found that not only did Congress intrude on the authority of the states when it worked a substantive expansion of the right to free exercise of religion guaranteed by Section 1 of the Fourteenth Amendment, but it also encroached upon the province of the United States Supreme Court. The Framers of the Constitution sought to preserve liberty by erecting multiple divisions of power amongst the branches of government. Beyond parceling the legislative power between the federal and state government, the Constitution cordons the power of Congress from that of the judicial branch of the federal government. RFRA, the Court concluded, was an effort to superimpose upon future cases the legislature's preference for -- rather than the Court's interpretation of -- the scope of the right to free exercise of religion under the United States Constitution. By its action, Congress arrogated the Court's exclusive authority, declared in Marbury v. Madison,(57) "to say what the law is."(58) As the Court tersely admonished, "it is the Court's precedent, not RFRA, which must control."(59)
Boerne did not mark the end of federal efforts to legislate strict scrutiny for deprivations of religious exercise unintentionally imposed by neutral laws of general applicability.(60) Commentators opined that Congress could restore strict scrutiny for unintended burdens on religion while passing constitutional muster under Boerne by either a) expanding the legislative record or more narrowly tailoring the act to satisfy the standards that Boerne demanded for remedial legislation under Section 5 of the Fourteenth Amendment; or b) relying upon the Spending Power,(61) the Commerce Power(62) or Congress's power to implement treaties,(63) rather than the Fourteenth Amendment, as the basis for mandating the compelling governmental interest/least restrictive alternative test for all burdens on religious liberty.(64)
The House of Representatives pursued both strategies when on July 15, 1999 it approved the Religious Liberty Protection Act of 1999 (RLPA).(65) First, Congress relied upon its powers under the Spending and Commerce Clauses in tailoring RLPA.(66) Section 2 of the Act prohibits the government from substantially burdening religious liberty through rules of general applicability a) in "a program or activity, operated by a government, that receives Federal financial assistance"; or b) "in any case in which the substantial burden on the person's religious exercise affects, or in which a removal of that burden would affect, commerce with foreign nations, among the several States, or with Indian tribes."(67) The government, however, could carry its burden by demonstrating a compelling interest that could not be satisfied by an alternative means less restrictive of the religious exercise in issue.(68)
Congress also drew upon its power under Section 5 of the Fourteenth Amendment when it promulgated discrete standards for land use regulations that substantially burden religious exercise. Where the "government has authority to make individualized assessments of the proposed uses to which real property would be put," the government must prove that any substantial burden on religious exercise furthers a compelling governmental interest and is the least restrictive means of furthering that interest.(69) RLPA further bars government agencies from crafting land use regulations that a) treat religious institutions on terms less favorably than nonreligious institutions;(70) b) discriminate on the basis of religion or religious denomination;(71) or c) unreasonably exclude or limit institutions principally devoted to religious exercise.(72)
The fate of federal legislative efforts to reinstate the safeguarding of minority faiths eviscerated by Smith remains uncertain both as a political and constitutional matter. While RLPA passed the House, no counterpart Senate bill has been introduced.(73) Even were the Senate to introduce and pass RLPA and procure the President's signature,(74) challenges to the constitutionality of RLPA are inevitable. Representatives Conyers, Scott, Watt, Waters, Meehan and Baldwin filed a dissenting analysis to the House Report on RLPA, expressing their belief that a) RLPA could not be sustained under Congress' power under Section 5 of the Fourteenth Amendment,(75) b) rather than insulate the bill from constitutional attack, reliance upon the Commerce and Spending Powers created additional constitutional problems,(76) and c) like RFRA, RLPA arguably usurped the authority of the Supreme Court by imposing an across-the-board strict scrutiny standard for burdens on religious liberty, the very standard that the Court repudiated in Smith.(77)
Even were RLPA to survive political opposition and constitutional challenges, it would fail to furnish complete relief to persons whose religious practices are infringed by state entities. RLPA does not abrogate the Eleventh Amendment immunity of states;(78) consequently, individuals whose religious exercise is encumbered in violation of RLPA could not recover damages from the state in an action filed in federal court. Nor may the victim recover damages from the state by filing suit in state court. In a decision issued on the final day of the last Term, the Supreme Court in Alden v. Maine(79) held that Congress lacks the power under Article I of the Constitution to subject non-consenting states to suits for damages in their own court.(80) Hence a person whose religion is burdened by a neutral law passed by a state legislature could at most procure prospective relief for the violation of RLPA but could not recover damages for the harm caused prior to judgment.(81)
IV. PROTECTING RELIGIOUS LIBERTY UNDER STATE STATUTES
While federal statutory efforts to restore strict scrutiny for unintended infringement of religious liberty remain in political and constitutional limbo, state statutes afford greater promise for reinstating the compelling interest/no less restrictive alternatives test for burdens on religious exercise imposed by neutral laws of general applicability.(82) Properly drafted, state religious freedom acts are not infected by the constitutional infirmities that doomed RFRA and that dangle over the proposed federal Religious Liberty Protection Act. To the contrary, the Boerne Court's rebuff of Congress's effort to restore the rights of religious minorities to expansive protection of their beliefs paves the road to the constitutionality of guaranteeing that religious liberty through state statutes.
A. State Religious Freedom Acts Do Not Rest upon the Power to Enforce the Fourteenth Amendment.
As previously analyzed,(83) the first basis on which the Court declared RFRA unconstitutional was that Congress acted beyond its powers conferred by Section 5 of the Fourteenth Amendment. By exceeding its enumerated authority, the Court reasoned, Congress arrogated "the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens."(84)
While the Court's conclusion deprived the United States Congress of the power to enact RFRA in its then-existing form, underlying the Court's repudiation lies express authority for state legislatures to achieve the same result. State legislatures seeking to insulate minority faiths against burdens imposed by laws of general applicability do not draw upon any power to remedy violations of the Fourteenth Amendment to the United States Constitution. Rather, as asserted expressly by the Arizona legislature in enacting its religious freedom restoration act, "Under its police power, the legislature may establish protections that ... supplement rights guaranteed by the Constitution."(85) State legislation that broadens the guarantee of religious liberty against unintended infringement falls squarely within the ambit of the states' "traditional prerogative" to preserve the welfare of its citizens that the United States Congress invoked when it enacted RFRA.
In the Federalist No. 45, James Madison, summarizing the federal-state balance intended by the Framers, asserted that the power to promote civil liberties would repose in the states:
The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation [sic], and foreign commerce. The powers reserved to the several States will extend to all objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.(86)
Consistent with Madison's description of the allocation of power to promote civil rights, for the first 150 years of our Nation it was left to state law to guarantee religious freedom against breach by state and local governments. The liberties enshrined in the original Bill of Rights were secured only against federal incursion.(87) While the ratification of the Fourteenth Amendment in 1868 afforded some federal constitutional restriction of state and local governmental acts, it was not until 1940 that the Supreme Court held that the rights safeguarded by the Free Exercise Clause of the First Amendment were fundamental and hence enforceable against the states.(88)
Even before the United States Supreme Court's pre-Smith jurisprudence constitutionally compelled that states avoid unintended burdens on religious exercise, state laws supplied exemptions to religious objectors from otherwise neutral, generally applicable laws.(89) Indeed, the tradition of state legislatures preserving the liberty of individuals to pursue their religious conscience dates back to colonial times.(90) As Justice O'Connor observed after reviewing the historic evidence in Boerne, "long before the First Amendment was ratified, legislative accommodations were a common response to conflicts between religious practices and civil obligation."(91)
Both the judicial and legislative branches of the federal government have endorsed the states' power to preserve the free exercise of religion against incursion by statutes of general applicability. The United States Supreme Court has acknowledged that so long as the state legislature does not violate the constraints of the Establishment Clause of the First Amendment to the United States Constitution,(92) legislative accommodation of religion "follows the best of our traditions."(93) Even Congress has recognized the states' role and power in protecting religious liberty, as the enforcement section of the proposed Religious Liberty Protection Act of 1999 provides, "Nothing in this subsection shall preempt State law that is equally or more protective of religious exercise."(94)
Eight states-Rhode Island,(95) Connecticut,(96) Illinois,(97) Florida,(98) South Carolina,(99) Arizona,(100) Texas,(101) and Idaho(102)--have exercised their police powers to enact laws requiring the exemption of religious objectors from neutral laws of general applicability unless the state can prove a compelling interest that cannot be satisfied by alternatives less restrictive of the exercise of religion.(103) In two other states, California and New Mexico, the legislature passed a religious freedom act but the Governor vetoed the legislation.(104) Although having the net effect of imposing a standard of scrutiny rejected by the United States Supreme Court in Smith, these acts do not depend upon any power to enforce the Fourteenth Amendment and hence do not suffer from the first defect that doomed RFRA. Nor do state religious freedom acts offend the second basis on which the Boerne Court struck down RFRA -- the Congressional invasion of the Supreme Court's domain.
B. State Religious Freedom Acts Do Not Usurp the United States Supreme Court's Power to Interpret the Federal Constitution.
The second basis on which the Boerne Court struck down RFRA is that Congress had trespassed upon the Supreme Court's prerogative to interpret the Constitution finally. This aspect of the Court's Boerne decision, however, does not doom efforts to legislate strict scrutiny under state law. Properly drafted, state enactments to preserve religious liberty against unintended governmental invasion do not challenge the United States Supreme Court's primacy in interpreting the Constitution.
The Federal Constitution merely fixes a floor of rights beneath which the state may not fall.(105) In establishing this baseline of liberty, the Supreme Court is constrained by federalism as well as the concern that the Court cannot reliably ascertain the effect of mandating a right that must be respected by each of the fifty states and their subdivisions.(106) States, not inhibited by the same factors, have historically been viewed as the laboratory for testing more generous treatment of individual rights.(107) In fact, several state courts have liberally interpreted the free exercise clauses of their own constitutions, rejecting Smith and applying strict scrutiny to neutral rules of general applicability,(108) States that opt to legislate strict scrutiny of unintended burdens on religious liberty do not snub the Supreme Court; to the contrary, they act in the long and desired tradition of independence in ministering to the unique needs of their constituents.
Interestingly, in a seemingly unrelated decision issued the day after Boerne, the Supreme Court affirmed the prerogative of states to prescribe rights broader than the Court's interpretation of liberties guaranteed by the United States Constitution. In Washington v. Glucksberg,(109) the Court held that the Due Process Clause of the Fourteenth Amendment does not embrace the right to physician-assisted suicide. The Court conceded that it is restrained...
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