Dusting Off Article I, Section 3: the Possibility of Constitutionally Required Exemptions from Rhode Island General Laws

• Citation: Vol. 53 No. 2
• Publication year: 2004

Rhode Island Bar Journal Volume 53.

53 RI Bar J., No. 2, Article 2 (September, 2004). Dusting Off Article I, Section 3: The Possibility of Constitutionally Required Exemptions From Rhode Island General Laws

Dusting Off Article I, Section 3: The Possibility of Constitutionally Required Exemptions From Rhode Island General Laws

THOMAS R. BENDER, ESQ.

Thomas R. Bender is a partner in the law firm of Hanson Curran LLP in Providence

The extent to which the right to free exercise of religion "requires government to refrain from impeding religious exercise defines nothing less than the respective relationships in our constitutional democracy of the individual to government and to God." (fn1) There are two constitutional frameworks in which this fundamental relationship is defined for the citizens of Rhode Island: the free exercise clause of the federal constitution (fn2) and the freedom of religion clause of the state constitution. (fn3) Etched into the south side of the state capital building is a timeless reminder of the idea that became Rhode Island: "To hold forth a lively experiment that a flourishing civil state may stand and best be maintained with full liberty in religious concernments."

Today the phrases "a lively experiment" and "full liberty in religious concernments" are found in art. I, sec. 3 of the Rhode Island Constitution, but they originated in the Royal Charter of 1663, the lively experiment being the establishment of a form of government that gave the broadest practicable berth to liberty of conscience and the free exercise of religion. The phrase "constitutionally required exemptions" describes free exercise jurisprudence embracing the compelling interest test for free exercise claims, which mandates "preserving religious liberty to the fullest extent in a pluralistic society." (fn4) The "exemptions" view requires government, in the absence of a sufficiently compelling need, to grant exemptions from legal duties that conflict with religious obligations.

Until 1990, the exemptions view was applied to both free exercise claims under the federal and Rhode Island constitutions by application of the compelling interest test - "the most demanding test known to constitutional law." (fn5) In that year, however, the United States Supreme Court dramatically changed course, adopting a "no exemptions" view of the first amendment free exercise clause - all citizens were obligated to comply with neutral laws of general application even if the law had the unintended and incidental effect of requiring the individual to do that which his or her religion forbade, or forbidding the individual from doing that which his or her religion required.

This article argues that the text, origin and history of the religion clause in art. I, sec. 3 of the Rhode Island Constitution has always encompassed the exemptions view of free exercise jurisprudence, and that Rhode Island's Constitution therefore provides greater protection for the free exercise of religion than does the United States Supreme Court's current interpretation of the First Amendment's free exercise clause. Consequently, if a free exercise claim were brought today under the State Constitution, independent analysis of art. I, sec. 3 would oblige the Rhode Island Supreme Court to apply the compelling state interest test to determine if an exemption from the civil law was constitutionally required - notwithstanding past pronouncements of the Court that art. I, sec. 3 is merely coextensive with the first amendment. First, a look at the text of each religion clause.

Comparing the Texts of the State and Federal Religion Clauses

The religion clause of the First Amendment is spare but succinct, it declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" (fn6) The religion clause of the State Constitution, however, is considerably more expansive. It begins with a brief statement of philosophy:

Whereas Almighty God hath created the mind free; and all attempts to influence it by temporal punishments or burdens or by civil incapacitations, tend to beget habits of hypocrisy and meanness; (fn7)

followed by a brief statement of history

and whereas a principal object of our venerable ancestors, in their migration to this country and their settlement of this state, was, as they expressed it, to hold forth a lively experiment that a flourishing civil state may stand and best be maintained with full liberty in religious concernments; (fn8)

which is then followed by a declaration of two restrictions on government power. First, "no person shall be compelled to frequent or to support any religious worship, place, or ministry whatsoever, except in fulfillment of such person's voluntary contract," (fn9) and second, no person shall be "enforced, restrained, molested, or burdened in body or goods; nor disqualified from holding any office; nor otherwise suffer on account of such person's religious belief[.]" (fn10) After setting forth these specific restrictions on government, art. I, sec. 3 finishes with a broad affirmation of religious liberty:

every person shall be free to worship God according to the dictates of such person's conscience, and to profess and by argument to maintain such person's opinion in matters of religion; and that the same shall in no wise diminish, enlarge, or affect the civil capacity of any person. (fn11)

This article focuses on the second of the two explicit restrictions on government power: the state analog to the federal right of free exercise of religion. The issue explored here is whether the two constitutional provisions, one federal and one state, provide for different degrees of protection to exercise religious belief free from the coercive effect of laws that would require a person to act contrary to sincerely held religious principles.

Upon first inspection, the significant difference in the text of each suggests that the State Constitution provides more sweeping protection for the exercise of religion when that exercise conflicts with civil law commands. Whereas the Federal Constitution merely restricts Congress from making any law "prohibiting the free exercise of religion," the Rhode Island Constitution affirmatively approves of "full liberty in religious concernments," and affirmatively guarantees that every person "shall be free to worship God according to the dictates of such person's conscience." Even the description of the government restriction is significantly broader in the state constitution. While the federal government may not prohibit the free exercise of religion, the state government may not restrain, molest, burden or otherwise cause a person to suffer on account of their religious belief. Notwithstanding these substantial textual differences, however, in 1968 the Rhode Island Supreme Court determined the State Constitution did not provide any greater protection for religious exercise than did the Federal Constitution.

State Religion Clause Jurisprudence

States retain the sovereign right to adopt more expansive individual liberties in their own constitutions than those that are conferred by the Federal Constitution, (fn12) and the Rhode Island Supreme Court has embraced this proposition, stating: "there is no question that states may, in applying provisions of their constitutions or state charters, afford their citizens greater protection and security than is provided under the United States Constitution." (fn13) More importantly, the text of article I was amended to affirm the primacy of the State Constitution in protecting the individual liberties and rights described therein by commanding that the State Constitution be seen as an independent and self-contained source of liberty, declaring "[t]he rights guaranteed by this Constitution are not dependent on those guaranteed by the Constitution of the United States." (fn14) Prior to this amendment, and any explicit recognition of the sovereign judicial power and right to independently interpret the State Constitution, the Court in one sentence of a per curiam opinion in Bowerman v. O'Connor, 104 R.I. 519, 247 A.2d 82 (1968), offered the bare conclusion that art. I, sec. 3 did not afford any greater protection with respect to religion than the Federal Constitution, declaring:

Nor can we agree with appellees that the language of the constitution of this state prohibiting establishment of religion or the interference with the free exercise thereof is more restrictive than the language of the federal constitution[.] (fn15)

The Court offered no explanation for the conclusion, and did not analyze or even refer to the text of the clause or its historical origins. While Bowerman was an "establishment" case, ten years later the Court repeated its conclusion in a free exercise case, In re Palmer, 120 R.I. 250, 386 A.2d 1112 (1978). In Palmer the petitioner, an orthodox Sunni Muslim, contended he had been denied rights secured by the free exercise clause of both the Federal and State Constitutions when a judge asked him to remove his prayer cap while in a courtroom. (fn16) In a footnote, the Court stated it would only address the Federal Constitutional issue, pointing out that in Bowerman it had held "that the language of article I, section 3 of the Rhode Island Constitution is no more restrictive as to religious freedoms than the language of the Federal Constitution." (fn17)

In equating the protections under the free exercise clause of the First Amendment and the religion clause of art. I, sec. 3, however, the Court relied on U.S. Supreme Court precedent to declare freedom of religion to be a "fundamental right" (fn18) occupying a "preferred position" (fn19) in the constitutional hierarchy. More importantly, the Court applied the compelling state interest/less restrictive means...