Moving from the Statehouses to the State Courts? the Post-Rfra Future of State Religious Freedom Protections

By Baumgardner, Paul; Miller, Brian K. | Albany Law Review, Summer 2019 | Go to article overview

Moving from the Statehouses to the State Courts? the Post-Rfra Future of State Religious Freedom Protections


Baumgardner, Paul, Miller, Brian K., Albany Law Review


Over the past several years, the national government has taken significant action in the area of religious freedom. President Trump has issued executive orders outlining new conscience protections and enforcement policies, the U.S. Supreme Court has wrestled with the limits of religious freedom in the workplace and in the coordination of healthcare, and Republican legislators have repeatedly pushed for the passage of the First Amendment Defense Act. (1) However, many of the most heated and controversial developments over religious freedom have occurred at the state level. (2)

Since the mid-1990s, many state legislatures across the United States have sought to pass new religious freedom protections, commonly known as Religious Freedom Restoration Acts ("RFRAs"). (3) Although initially popular, these legislative attempts have become extremely divisive in recent years. (4) In this Article, we explain the growing debates surrounding state RFRAs, with a special focus on the ways in which state legislatures may sidestep these landmines.

Political scientists have outlined multiple instances in which federal courts have assumed responsibility for setting policy when Congress and the President have been unable or unwilling to act. (5) This brand of judicial policymaking is especially common when there is significant partisan disagreement or a threat of public backlash. (6) This Article argues that a similar phenomenon also occurs within state-level institutions. For example, recent religious freedom disputes within Iowa have displayed the virtues of empowered state courts taking the lead in addressing controversial religious freedom claims. (7)

In this Article, we illustrate how approaching religious freedom claims through the judicial branch can help states avoid the dangers of RFRA legislative fights, while ensuring that religious protections are balanced against competing rights claims and vital state duties. In true common law fashion, state judges have exhibited the ability to slowly sculpt a jurisprudence that is both protective of our basic freedoms and also responsive to the needs of local communities.

In Part I, we offer a brief description of how state protections for religious freedom operated throughout much of the twentieth century. Part II outlines the changing religious freedom landscape following the U.S. Supreme Court ruling in Employment Division v. Smith (8) Part III charts the development of state RFRAs over the past two decades. In Part IV, we evaluate the most recent failed RFRA proposal in Iowa. Part V provides a detailed history of the religious freedom jurisprudence of the Iowa Supreme Court. We find that the state courts have showcased flexibility and pragmatism in safeguarding Iowans' religious exercise, without directly relying on the RFRA tradition. (9) In Part VI, we conclude that Iowa's experiences serve as a valuable model for other states that are looking for ways to protect religious freedom without getting bogged down in state legislative battles.

I. STATES PROTECTIONS BEFORE THE 1990S

For most of the nineteenth century, the Bill of Rights within the United States Constitution only constrained the actions of the federal government, meaning that citizens derived many of their political rights and duties from their local and state laws. (10) Accordingly, most legal controversies concerning religious exercise that arose during the eighteenth and nineteenth century were adjudicated at the state level. (11) However, federal constitutional law underwent a dramatic shift in focus in the twentieth century, as judges came to place greater emphasis on individual rights against national, state, and local governmental encroachment. (12)

At the core of this program to better guard constitutionally enumerated individual rights was the doctrine of incorporation. (13) Across the twentieth century, the federal courts expanded the doctrine of incorporation, which held that the Fourteenth Amendment of the United States Constitution 'incorporates' the rights found in the Bill of Rights against intrusion from national and state governments. …

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