The Religion Clauses and the “Really New” Federalism
It had been a principle of contemporary constitutional law that once a provision of the Bill of Rights was “fully” incorporated, such as with the First Amendment, it established a constitutional minimum. A state could provide, either by constitutional or statutory provision, additional protections to its citizens, so long as this did not create a conflict with other federal law. Another principle, until recently, was that the federal government had the ability by legislation to provide additional or enhanced rights to Americans, and that these rights applied uniformly to residents of all states.
The application of these two principles?at least as applied to First Amendment and Equal Protection rights?was relatively straightforward. The criteria for determining whether a government act violated the Establishment Clause would be applied to any government actor, whether at the federal, state, or local level. The Free Exercise of Religion was protected from violation (defined as significant or substantial interference) by government. Actions by a government entity that might interfere with religious activity had to survive a strict scrutiny review, that is, a showing of a compelling government interest and proof that restrictions were as narrowly tailored or least restrictive as possible. Discrimination by government based on race, as well as several other “immutable traits,” also had to sustain a strict constitutional scrutiny. Other rights were protected by “semi-strict” scrutiny or a “hard rational basis” (rational basis “with teeth”) review.
If these protections were felt inadequate, Congress under public pressure could and did enact civil rights statutes that provided additional national protections against discrimination by public or private players, first as to race, alienage, nationality, religion, and gender and then later as to disability and age. States were also free to enact their own civil rights statutes providing additional protections, so long as the statutes did not conflict with federal law or policy.
These two principles?that the Bill of Rights established a constitutional minimum that states could exceed and the federal government could legislate enhanced rights?were challenged, and now seemingly inverted, by two Supreme Court decisions: Locke v. Davey and, most recently, Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal (O Centro). Civil rights protections for citizens now depend on whether the violations are by the federal government, state government, or local government. First, First Amendment protections?the “free exercise” of religion and the “wall of separation” between church and state?have been limited. Next, federal statutes that provide additional protections are applied differently now depending on the level of government. They apply fully to actions by federal officials, but states are free to apply under their own laws a more stringent set of standards for separation of church and state. States are also free to pass neutral and general laws that restrict religious practices. This article describes this evolution, particularly the new two-tier process of review under the revised concept of federalism indicated by O Centro.
Martin H. Belsky, The Religion Clauses and the “Really New” Federalism, 42 Tulsa Law Review 537, (2007).