Not quite a year ago, a Minnesota Court of Appeals ruling confirmed something about our state that seems noteworthy just now. Namely, that Minnesota has some of the strongest legal protections for religious freedom to be found anywhere — under its own Constitution.
This may seem comforting in a world ablaze with religious conflict. Yet with gentler collisions increasing between America’s religious conservatives and an advancing progressive social agenda, Minnesota’s spacious religious liberties might also eventually produce a bit of discomfort in some quarters.
Controversies over the rights of those who disapprove of contraception or same-sex marriage could eventually require Minnesota judges to consider anew just how far religious freedom extends in this state. But this time they’d do it under intense scrutiny on culture-war battlegrounds.
Little fanfare accompanied the Appeals Court’s ruling last September in favor of a juvenile designated J.J.M.A. The teenager had been found delinquent for possession of drug paraphernalia — a marijuana pipe.
An adherent of the Caribbean-based Rastafari religion, J.J.M.A. appealed on grounds that his faith requires him to carry a marijuana “chalice” at all times. The pipe’s colors have religious meaning: “[r]ed for the blood [of] the martyrs; yellow for the sun that grows the greens, the sacred herb.”
It is not the court’s place, the appeals judges held, to examine “the justification, logic, or comprehensibility of this belief.” The belief is sincere, and Minnesota lacks a strong enough interest to justify enforcing its paraphernalia law against J.J.M.A. The Minnesota Constitution, the court noted, “precludes even … an interference with religious freedom” (emphasis theirs).
The back story is tangled, but worth understanding. The pot pipe ruling was rooted in a 1990 interpretation of the Minnesota Constitution in a landmark case before the Minnesota Supreme Court. In State vs. Hershberger, that court declared that the Minnesota Constitution guarantees broader protections for religious freedom than the U.S. Constitution does. As a result of the Minnesota charter’s “distinctively stronger” religious freedom clause, the high court held that the state could not require rural Amish people to affix orange slow-moving-vehicle emblems to their typically black horse-drawn buggies. The Amish object to the symbols as “loud” and “worldly.”
The Hershberger ruling, in its turn, had come in response to a U.S. Supreme Court ruling earlier that same year.
And this is where the history of religious freedom in Minnesota intersects with the origins of the Hobby Lobby controversy that made so much news this summer.
In June, you’ll recall, the U.S. Supreme Court ruled that the so-called “contraceptive mandate” under the Affordable Care Act cannot be enforced against closely held family corporations whose owners have a sincere religious objection to paying for insurance that covers forms of contraception they consider tantamount to abortion. The court made that ruling, not under the U.S. Constitution’s First Amendment, but under a 1993 federal statute — the Religious Freedom Restoration Act (RFRA).
RFRA was enacted by overwhelming congressional majorities in response to the same U.S. Supreme Court case that had inspired Minnesota’s Hershberger ruling. In 1990, in Employment Division vs. Smith, the federal court had ruled (in a case involving ceremonial drug use by American Indians) that the First Amendment provides no religious exemption from the provisions of general laws. “To permit this,” Justice Antonin Scalia wrote, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Many critics were appalled, not least progressives. No less an exemplar than the Star Tribune Editorial Board predicted “years of turmoil” from Scalia’s overturning America’s tradition of “wide latitude to private religious belief and practices.”
The turmoil, in fact, continues to this day, but its roots are as much in the backlash to the Smith ruling as in the ruling itself.
Congress passed RFRA to overrule the Smith court and require “restoration” of “wide latitude” to religion. RFRA says that government can “substantially burden” religious beliefs only when a “compelling” public interest is at stake and the burden represents the “least restrictive” means of protecting that interest. That was the basis of Hobby Lobby’s victory against the contraceptive mandate under federal health care reform.
But RFRA (due to another court ruling) generally does not provide religious exemptions to state laws. And that has inspired state Rep. Erin Murphy of St. Paul, the DFL’s majority leader in the House, to urge that the 2015 Legislature should enact a state-level contraception mandate. It would, supporters hope, bypass the Hobby Lobby ruling and ensure contraceptive coverage for many Minnesota women who work for closely held employers.
But while RFRA may not get in the way of enforcing a state contraceptive mandate, the Minnesota Constitution (which clearly does limit state laws) just might in light of the Hershberger logic.
“Are there state protections that [such laws] would have to contend with? Absolutely,” said Teresa Collett, a professor at the University of St. Thomas Law School. “Hershberger is the first place to go to.”
The Hershberger interpretation of the state Constitution — Minnesota’s RFRA, you could call it — could also arise one day in disputes over wedding venues, photographers or caterers who harbor religious objections to providing services at same-sex weddings. Recently, the state Department of Human Rights announced its first settlement of such a dispute in Minnesota. A Little Falls hunting club apologized for initially declining to host a gay wedding and agreed to pay for the couple’s relocated ceremony.
There is, of course, no telling how courts might rule should some future wedding vendor prove more stubborn and assert a religious exemption from Minnesota’s nondiscrimination laws — or if an employer challenges a future state contraception mandate.
But in a state where even “an interference with religious belief” has been declared unconstitutional, such cases could at least prove interesting. And uncomfortable.
D.J. Tice is at Doug.Tice@startribune.com.