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Abstract

After the Nebraska Supreme Court’s holding in In re Interest of Anaya (“Anaya II”) in December of 2008, an individual whose religious liberty is burdened by a neutral, generally applicable law has no recourse under the Nebraska Constitution, no matter how extreme the burden is.

The plaintiffs in Anaya II challenged the state’s newborn screening statutes under the free exercise provision of article I, section four of the Nebraska Constitution (hereinafter “Section Four”), claiming that drawing blood from their infant under the newborn screening statutes violated their sincerely held religious beliefs. In so arguing, they cited Palmer v. Palmer, in which the Nebraska Supreme Court held that the compelling interest test applied to Section Four claims. The court in Anaya II rejected this argument, holding that Palmer’s adoption of the compelling interest test depended on a no longer valid federal law. Though the court acknowledged that the state and federal provisions contained different language, it refused to analyze the Nebraska provision’s text or history. The court then held that Nebraska’s Section Four protected free exercise only as much as the Federal First Amendment because they protected similar rights. Since, under Smith, the First Amendment’s Free Exercise Clause requires only a rational basis test for neutral laws of general applicability, the court reasoned that the Nebraska provision does as well. Anaya II will have wide-ranging effects on the status of religious freedom in Nebraska. Part II of this Note discusses the development of federal and Nebraska free exercise jurisprudence, concluding with the Anaya II decision. Following this background information, Part III examines the effects of the Nebraska Supreme Court’s adoption of the rational basis test for neutral, generally applicable laws that incidentally burden religious practice. Part IV concludes with the recommendation that the Nebraska Legislature adopt a statute reestablishing the compelling interest test for all Section Four free exercise claims.

The Nebraska Supreme Court’s adoption of the rational basis test in Anaya II was a dangerous mistake. First, by tying the meaning of Section Four to the U.S. Supreme Court’s interpretations of the First Amendment, the Nebraska Supreme Court has effectively allowed the U.S. Supreme Court to amend the Nebraska Constitution without the consent of Nebraska’s citizens. This is at odds with both the text and the history of the Nebraska Constitution. In addition, the use of the rational basis test results in a lack of any real protection of religious practice—neutral, generally applicable laws can burden religious freedom just as much as laws targeted at religion, and religious minorities’ free exercise rights are now subject to the political process. For these reasons, the Nebraska Supreme Court’s refusal to apply the compelling interest test, which it applied in Palmer to Section Four free exercise claims arising from neutral, generally applicable laws, is a mistake that severely limits the protection of religious exercise under the Nebraska Constitution.

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