The existence of both federal and state constitutional rights ensures greater protections for civil liberties and is vital to our nation’s practice of Federalism. Even so, rights that are established by state constitutions are often unknown to litigators and the general public alike. While many know that the First Amendment protects the free exercise of religion, free speech, and freedom of the press, not many are aware that Michigan’s Constitution provides greater protections for some rights than the First Amendment. This is the case with respect to right to free exercise of religion which is guaranteed under Article I § 4 of the Michigan Constitution.
Article I § 4, adopted by the State of Michigan in 1963, states that “Every person shall be at liberty to worship God according to the dictates of his own conscience…The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.” Under this constitutional provision, Michigan provides for the highest degree of scrutiny laws burdening religious exercise—strict scrutiny. For laws in Michigan to survive this analysis, the state must show that it has a “compelling interest” in the law and has advanced that interest using the least “obtrusive regulation available to the state.” People v. DeJonge, N.W.2d 127, 135 (Mich. 1993). In most cases, this is a very high bar to clear.
Until Employment Division v. Smith, the Supreme Court applied strict scrutiny through the First Amendment to all state actions burdening religious exercise. However, the Court eventually decided in Smith that “neutral” and “generally applicable laws” did not implicate First Amendment protections for the free exercise of religion. 494 U.S. 872, 882 (1990). This meant that if the state did not clearly intend to discriminate against religious practice, and if its regulations were not under-inclusive of the state’s interests, that First Amendment protections for free exercise of religion would not apply. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 544 (1993). As a result, many laws which burdened religious exercise would not trigger the First Amendment under Smith.
Smith drastically altered the status of free exercise rights and lowered the threshold the state had to clear to prove the constitutionality of its actions. Many states responded to this shift at the federal level through statute—ensuring the application of strict scrutiny against state or local laws burdening religious exercise—and some state courts even interpreted their constitutions to offer broader protections than the First Amendment. After years of following the Supreme Court’s direction with respect to free exercise, the Michigan Supreme Court determined that Article I § 4 would be interpreted independently of the First Amendment thereby establishing strict scrutiny in free exercise cases. See McCready v. Hoffius, 586 N.W.2d 723 (1998) vacated in part, 593 N.W.2d 545 (Mich. 1999).
Even so, Michigan’s lower courts have sometimes become confused with respect to Article I § 4. Arguably, because the Michigan Supreme Court did not explicitly repudiate in McCready its former methodology for interpreting the right to free exercise of religion in the Michigan constitution, Michigan courts have sometimes continued to apply Smith when evaluating the right to free exercise under the Michigan Constitution. See, e.g., Great Lakes Soc. v. Georgetown Charter Twp., 281 Mich. App. 396, 425, 761 N.W.2d 371, 388 (2008) (stating that “there are no significant differences between the Michigan and United States constitutions with regard to the rights afforded or their interpretation.”). Notwithstanding, both the Michigan Supreme Court, as well as several Federal District Courts, have recognized that the Michigan Constitution requires the application of strict scrutiny when evaluating a free exercise claim. Shepherd Montessori Ctr. Milan v. Ann Arbor Charter Twp., 783 N.W.2d 695, 698 (Mich. 2010); Intervarsity Christian Fellowship/USA v. Bd. of Governors of Wayne State Univ., 534 F. Supp. 3d 785, 829-30 (E.D. Mich. 2021); Shepherd Montessori Ctr. Milan v. Ann Arbor Charter Twp., 783 N.W.2d 695, 698 (Mich. 2010).
The existence of these protections in the Michigan Constitution for religious exercise are invaluable for religious communities and individuals who are affected by state or municipal laws and regulations. In matters involving free exercise of religion, it is important that you are connected with attorneys who understand the protections you are entitled to under both Federal and State Constitutions. The attorneys at Dalton & Tomich would be happy to speak with you if you have any questions regarding your free exercise rights. Please do not hesitate to contact us.
