By John David Dyche
Last fall the Supreme Court of Kentucky held, as Attorney General Jack Conway urged, that the state Constitution affords no greater protection to free exercise of religion than the U. S. Constitution does. So Kentuckians have no more religious freedom than the U. S. Supreme Court in Washington allows in its First Amendment decisions.
In Gingerich v. Commonwealth the state high court affirmed convictions of Amish defendants for violating a state law requiring slow-moving vehicles to display a brightly colored emblem. The defendants argued that making them display the orange-yellow triangular symbol on their horse-drawn buggies violated their religious liberty because it was not plain and was a representation of the Trinity.
Writing for the majority, Justice Mary Noble of Lexington said that under federal law such statutes protecting public health, safety and welfare pass constitutional muster as long as they are not aimed at religion and there is a rational basis for them. Laws almost always meet that lenient standard of review.
This law was OK, the majority ruled, because it was not directed at Amish religious expression, but rather at all slow-moving vehicles, and because there is "ample rational basis for such a statute: it is aimed at public general safety, and works toward that goal in several ways (e.g., by using a universal symbol, increasing visibility over vehicles without the emblem)."
The Amish defendants argued that the Kentucky Constitution's protections of religious liberty are broader than those in the First Amendment. Their argument is based on both the federal structure of the American system -- in which states are free to accord individual rights greater, but not lesser, protection than the national government does -- and from the differing language of the relevant federal and state constitutions.
As the late liberal state Supreme Court Justice Charles Leibson put it in his 1992 opinion creating a state constitutional privacy right that was broader than the federal one, "Under our system of dual sovereignty, it is our responsibility to interpret and apply our state constitution independently. … Contrary to popular belief, the Bill of Rights in the United States Constitution represents neither the primary source nor the maximum guarantee of state constitutional liberty."
Sometimes Kentucky's Supreme Court finds state constitutional rights to be broader than federal constitutional rights, but other times it finds the scope of those rights to be the same, even when the two constitutions use significantly different language. For example, the state high court has held that the state Constitution offers no greater protections against searches and seizures, and no greater freedoms of speech and of the press, than does the U. S. Constitution.
With regard to freedom of religion, the Kentucky Constitution provides, in one relevant part, that, "No human authority shall, in any case whatever, control or interfere with the rights of conscience." The First Amendment, on the other hand, says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Noble wrote that, "It is linguistically impossible for language to be more inclusive than that in the First Amendment," and held that the Kentucky Constitution's grant of religious freedom is no broader than the First Amendment's.
Chief Justice John Minton of Bowling Green, Justice Bill Cunningham of Lyon County, and former Justice Wil Schroder of Fort Mitchell concurred in Noble's analysis and in the result. Justice Dan Venters of Somerset agreed that application of the statute to the Amish defendants did not infringe on their religious liberty, but disagreed with "the proposition that the protection of liberty provided by the Kentucky Constitution simply mirrors the comparable protections afforded by the federal Constitution."
Justice Will T. Scott of Pikeville dissented outright, and Justice Lisabeth Hughes Abramson of Louisville joined his opinion. Scott wrote that "the Kentucky Constitution unquestionably affords greater protection to the free exercise of religion than does the Federal Constitution" and would have imposed a tougher standard of review known as "strict scrutiny."
Scott and Abramson voted to reverse the convictions of the Amish defendants because the Commonwealth failed to prove that the law requiring display of the symbol was narrowly tailored to promote the government's compelling interest in highway safety. As evidence of this Scott observed that since the defendants' convictions the General Assembly had adopted other safety alternatives that were less restrictive of religious liberty.
This decision involved difficult, but extremely important, issues. It is the sort of thing that gets little serious attention in judicial campaigns. But maybe that is for the best. Regardless of whether one believes this case came out right or wrong, we should not want our judges making constitutional decisions based on public opinion.
Conway, on the other hand, could have argued, like Venters did, to uphold the statute and the convictions, but to do so without tethering religious liberty in Kentucky to the vagaries of U. S. Supreme Court decisions. Instead, he argued that the two constitutions were "coterminous," and that position limiting religious liberty in Kentucky could come back to haunt him if he ever runs for governor.
John David Dyche is a Louisville attorney and political commentator for WDRB.com. His e-mail is firstname.lastname@example.org.