Federalism provided an important counterbalance to the Supreme Court’s weakening of federal protection for religious liberty. All state constitutions have provisions that protect religious liberty, most with language distinctive from the federal free exercise clause.
Some state supreme courts followed the federal Supreme Court’s lead and adopted the weaker “rational basis” standard for their state constitutional protection of religious liberty. But many state supreme courts adopted the stronger “compelling interest” test.
State legislative efforts have been another important way to end-run Smith. Since 1993, sixteen states have passed their own state versions of the federal Religious Freedom Restoration Act (“RFRA”). These state RFRAs use the compelling interest” standard to determine the constitutionality of state or local government action that burdens religious exercise. The sixteen states are: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, and Virginia. (See this map at the Volokh Conspiracy).
But why just sixteen states?
You’ll recall that the religious liberty community gained a great bipartisan victory in 1993 with the passage of the federal RFRA. When the Supreme Court held its application to the states unconstitutional (but not as to the federal government), the religious community tried to pass state RFRAs.
Unfortunately, the religious community’s unity did not last. In 1997, the coalition fragmented over whether religious liberty should allow religious citizens to follow their religious convictions in the face of state or local nondiscrimination laws regarding sexual orientation or marital status. Some religious liberty groups were unwilling to allow religious liberty to ever trump sexual freedom.
As a result, the momentum for state RFRAs slowed dramatically. While the momentum has slowed, it has not vanished. In 2009, Tennessee passed a state RFRA; however, two weeks ago, North Dakota defeated a RFRA amendment to its state constitution.
Please pray for the passage of state RFRAs in more states. Pray for your state supreme court to interpret the state constitution (and state RFRA, if there is one) to provide strong protection for religious liberty. Pray that the national consensus in favor of religious liberty would be restored. Pray also for Justice Kagan, who during her time in the Clinton White House seemed to be sympathetic to a strong protection for religious freedom, and for her work on the Court.
Kim Colby of the Center for Law and Religious Freedom continues her guest blogging here through tomorrow for the Fortnight4Freedom.