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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

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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

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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.

48

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

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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

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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

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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

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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.