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16 - Religious Conscience Protections in American State Constitutions

from Part III - Applied Topics in Law and Conscience

Published online by Cambridge University Press:  12 June 2021

By
Michael J. DeBoer
Edited by
Jeffrey B. Hammond  and
Helen M. Alvare
Jeffrey B. Hammond
Affiliation:
Faulkner University
Helen M. Alvare
Affiliation:
George Mason University, Virginia
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Summary

Michael DeBoer identifies five periods in US state constitutions’ protections of religious conscience. The first and second periods, from roughly 1776 to the 1830s, saw state constitutions grant solicitude to religious conscience and free exercise. The end of the second period saw all states abolish church establishments. The third period, from the 1830s to the 1920s, saw many new states in the Union, and their constitutions were largely protective of religious conscience. The fourth period, from the 1920s to the 1970s, saw the incorporation of the US Constitution’s religion clauses against the states, and new or amended state constitutions’ textual conscience protections borrowed language from the US Constitution. Some state interpretations of conscience-related issues closely mirrored those from the Supreme Court. In the fifth period, from the 1970s to present, some states were protective of religious conscience, while other states have hewed to religion-harmful interpretations occasioned by the Supreme Court’s case of Employment Division v. Smith. In this period, some states passed Religious Freedom Restoration Acts (RFRAs) modeled after the federal statute.

Keywords

Bills of Rights (federal and state)Blaine Amendmentsconscientious objectionconstitutions (federal and state)establishments of religionFirst Amendmentinalienable rightsnew judicial federalismReligious Freedom Restoration Act
Type
Chapter
Information
Christianity and the Laws of Conscience
An Introduction
 , pp. 305 - 335
Publisher: Cambridge University Press
Print publication year: 2021

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References

Recommended Reading

Adams, Arlin M., and Emmerich, Charles J.. A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses. Philadelphia, pa: University of Pennsylvania Press, 1990.Google Scholar
Antieau, Chester James, Carroll, Phillip Mark, and Burke, Thomas Carroll. Religion under the State Constitutions. Brooklyn, ny: Central Book Company, 1965.Google Scholar
Carmella, Angela C. “State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence.” Brigham Young University Law Review (1993): 275–325.Google Scholar
Cobb, Sanford H. The Rise of Religious Liberty in America: A History. New York, ny: The MacMillan Company, 1902.Google Scholar
Curry, Thomas J. The First Freedoms: Church and State in America to the Passage of the First Amendment. New York, ny: Oxford University Press, 1986.Google Scholar
Dreisbach, Daniel L., and Hall, Mark David, eds. The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding. Indianapolis, in: Liberty Fund, Inc., 2009.Google Scholar
Feldman, Noah. “The Intellectual Origins of the Establishment Clause.” New York University Law Review 77 (2002): 346–428.Google Scholar
Gunn, T. Jeremy, and Witte, John Jr., eds. No Establishment of Religion: America’s Original Contribution to Religious Liberty. New York, ny: Oxford University Press, 2012.Google Scholar
Hamburger, Philip. Separation of Church and State. Cambridge, ma: Harvard University Press, 2002.CrossRefGoogle Scholar
Kurland, Philip B., and Lerner, Ralph, eds. The Founders’ Constitution, vol. 5. Chicago, il: University of Chicago Press, 1987.Google Scholar
Linton, Paul Benjamin. “Religious Freedom Claims and Defenses under State Constitutions.” University of St. Thomas Journal of Law & Policy 7 (2013): 103–91.Google Scholar
McConnell, Michael W. “The Origins and Historical Understanding of Free Exercise of Religion.” Harvard Law Review 102 (1990): 1409–1517.Google Scholar
Miller, William Lee. The First Liberty: America’s Foundation in Religious Freedom, expanded and updated ed. Washington, dc: Georgetown University Press, 2003.Google Scholar
Witte, John Jr., and Nichols, Joel A.. Religion and the American Constitutional Experiment, 4th ed. New York, ny: Oxford University Press, 2016.Google Scholar

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