State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board exemption violates the Establishment Clause, a state constitutional provision that is interpreted to apply a similar exemption standard would also violate the Establishment Clause.
I read Locke as commenting favorably on the expansive protection provided by the Washington constitution's free exercise clause. The Court seemed to suggest that play in the joints applied to both free exercise and establishment clause values and that the fact that the state provided greater protection under the state's free exercise clause than the federal constitution required helped to justify the Court's establishment clause holding.
I don't suggest that these state constitutional interpretations are identical to RFRA or RLUIPA. Merely that they apply broadly to laws or individual assessments that substantially burden the exercise of religion. So my question is -- Do you believe that free exercise provisions in state constitutions that provide more rigorous protection than Smith and apply generally and broadly violate the Establishment Clause -- and if so, does the Court's language in Locke undercut such an argument.
Alan Brownstein UC Davis
At 02:05 PM 3/1/2004 -0500, you wrote:
I wonder, Alan, if you could play this out a bit for me. Locke v. Davey stands for the proposition that disestablishment principles support carving back on benefits to religious groups from an otherwise generally applicable scheme. At the same time, it says those disestablishment principles do not require a carveout for religious groups. RLUIPA is not on point, but maybe I'm missing something here. RLUIPA says that religious groups, and religious groups alone, get first class treatment in the land use process. That is a preference for religion that looks very different from the scheme the Court implicitly approves, which is a generally applicable scholarship plan that would include religion. Maybe if every other landowner were getting good treatment, and religious groups were just being brought up to their standards, one could say that RLUIPA looks like the scheme in Locke. But that is not in fact the situation in land use law. For nighbors with contiuous parcels in identically zoned areas, the religious landowner gets the RLUIPA tool to avoid the law, while the nonreligious landowner gets nothing beyond the existing law. As I say, though, I may not understand your question.
With respect to expansive protection for free exercise in the states under land use law, no state provides uniform strict scrutiny in the land use context, and every state that tends toward stricter scrutiny has exceptions for the public good. Land use is, in many respects, an arena that is like no other arena.
Regards, Marci
I am curious, Marci, if you think that Washington's interpretation of the free exercise provision of it's constitution violates the Establishment clause of the First Amendment -- for the same reasons that you believe that RLUIPA violates the Establishment Clause. And if so, does the Court's favorable comments about play in the joints and an expansive reading of state free exercise rights undercut your argument.
Alan Brownstein UC Davis
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