Supreme Court's infamous decision, Employment Division, Department of Human Resources v. Smith unexpectedly and dramatically altered the degree of protection available to religious observers under the Free Exercise Clause. Prior to Smith, the general consensus in the legal community was that even laws unintentionally burdening a claimant's right to free exercise of religion had to serve a compelling governmental interest to pass constitutional muster. Smith reversed this paradigm by characterizing prior free exercise jurisprudence as actually standing for the principal that a neutral law "of general applicability need not be justified by a compelling governmental interest" even where the law prohibits a person from doing something his religion demands or requires him to do something that his religion forbids. While this general rule threatened to leave religious liberty vulnerable to frequent limitation, the Smith Court carved out a narrow exception that still left some bite in the Free Exercise Clause. Under the so-called hybrid-rights exception to Smith's general rule, neutral and generally applicable laws are still subject to strict scrutiny review when they implicate not only the claimant's free exercise rights but "other constitutional protections" as well. In particular, the hybrid-rights exception accommodates landmark cases in which the Supreme Court used heightened scrutiny to review laws burdening both free exercise rights and parental rights.
The Nebraska Supreme Court was called upon to consider this exact combination of rights, and thus the applicability of the hybrid-rights exception, when it heard Douglas County v. Anaya. In Anaya, an infant's parents refused to comply with Nebraska's mandatory metabolic testing law on the grounds that the law conflicted with their religious beliefs regarding the proper care of their child. The Nebraska Supreme Court struggled to make sense of the muddled hybrid-rights concept and consequently erred in applying the exception when it held that neutral and generally applicable laws need not be subjected to strict scrutiny review, even where such laws implicate both free exercise rights and parental rights. Accordingly, the court affirmed the district court's order that the Anayas immediately submit their child for the requisite metabolic testing. This Note focuses on the narrow question of what approach to hybrid-rights claims the Nebraska Supreme Court should have used to evaluate the Anayas' claim and illustrates how the proper approach would have affected the outcome in Anaya. Part II of this Note provides a legal background for hybrid-rights claims and an explanation of Douglas County v. Anaya, including the factual background and the court's holding. In Part III, this Note demonstrates that the three mainstream lower court approaches to the hybrid-rights exception are all flawed, and that the Nebraska Supreme Court erred in failing to adopt the "genuinely-implicated" approach to hybrid-rights claims. Part III continues by showing that the Anayas would have obtained strict scrutiny review of Nebraska's metabolic testing law had the Nebraska Supreme Court used the genuinely-implicated approach. Finally, Part IV concludes by emphasizing that the Nebraska Supreme Court's failure to use the appropriate approach to hybrid-rights claims represents an erroneous rejection of historically significant constitutional interests that, unfortunately, will likely be repeated by other courts.
Benjamin I. Siminou,
Making Sense of Hybrid Rights: An Analysis of the Nebraska Supreme Court's Approach to the Hybrid- Rights Exception in Douglas County v. Anaya,
85 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol85/iss1/9