Why is NCRFRA needed now? What reason is there to believe that free exercise rights under the state constitution may not be robustly interpreted without it?

The free exercise language is strong: United States Const., Amdt. 1: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *” N.C. Const. Art. I, § 13 (frmrly § 26) “All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.”

Our Supreme Court deems them equivalent: In re Williams, 269 N.C. 68, 78 (1967): “[T]he freedom protected by [the state free exercise clause] is no more extensive than the freedom to exercise one’s religion, which is protected by the First Amendment to the Constitution of the United States.”

Williams held, relying on U.S. Supreme Court precedent... “The free exercise of religion is impaired not only by governmental prohibition of that which one's religious belief demands but also by governmental compulsion of that which one’s religious belief forbids. Sherbert v. Verner, 374 U.S. 398 (1963).” “On the other hand, the freedom to exercise one’s religious beliefs is not absolute.” “The liberty secured by the [federal and state free exercise clauses is], however, so basic and fundamental that one may not be compelled by governmental action to do that which is contrary to his religious belief in the absence of a ‘compelling state interest in the regulation of a subject within the State's Constitutional power to regulate.’” (Quoting Sherbert) And that was fine at the time of Williams:

So, Williams established: One may not be compelled by governmental action to do that which is contrary to his religious belief in the absence of a “compelling state interest.” 1.The N.C. and U.S. free exercise clauses are co-extensive. 2.U.S. case law, Sherbert v. United States, requires strict scrutiny/compelling governmental interest balancing test. 3.Therefore, strict scrutiny is also the free-exercise law of N.C.

That’s exactly what RFRA does. So, why is the law needed here? Roll Tape

Sherbert v. United States (1963) In re Williams (1967) (relying on Sherbert) Emplt Div. v. Smith (1990) United States North Carolina Williams relied on Sherbert.

Sherbert v. United States (1963) In re Williams (1967) (relying on Sherbert) Emplt Div. v. Smith (1990) United States North Carolina 23 years after Williams, the U.S. Supreme Court overruled Sherbert, in Employment Division v. Smith (1990).

Sherbert v. United States (1963) In re Williams (1967) (relying on Sherbert) Emplt Div. v. Smith (1990) United States North Carolina US RFRA (1993) City of Boerne v. Flores (1997) 21 state RFRAs ( ) Congress responded with RFRA, which legislatively restored the protections of Sherbert, and was to apply to federal and state law. In 1997, the U.S. Supreme Court held that applying RFRA to state laws exceeded Congress’ authority.

Sherbert v. United States (1963) In re Williams (1967) (relying on Sherbert) Emplt Div. v. Smith (1990) United States North Carolina US RFRA (1993) City of Boerne v. Flores (1997) 21 state RFRAs ( ) The N.C. courts have not revisited the issue whether the strict scrutiny balancing test still applies under the N.C. Constitution. In reaction to that, 21 states have enacted their own RFRAs.

But the foundation of Williams is undermined: One may not be compelled by governmental action to do that which is contrary to his religious belief in the absence of a “compelling state interest.” 1.The N.C. and U.S. free exercise clauses are co-extensive. 2.U.S. case law, Sherbert v. United States, requires strict scrutiny/compelling governmental interest balancing test. 3.Therefore, strict scrutiny is also the free-exercise law of N.C.

For the strict scrutiny balancing test to continue to apply, our Supreme Court must hold that the N.C. and U.S. free-exercise clauses are no longer co-extensive. 1.The N.C. and U.S. free exercise clauses are co-extensive. 2.U.S. case law, Sherbert v. United States, requires strict scrutiny/compelling governmental interest balancing test. 3.Therefore, strict scrutiny is also the free-exercise law of N.C.

Sherbert v. United States (1963) In re Williams (1967) (relying on Sherbert) Emplt Div. v. Smith (1990) United States North Carolina US RFRA (1993) City of Boerne v. Flores (1997) 21 state RFRAs ( ) State v. Carignan (2006) In a non-binding 2006 opinion, the Court of Appeals explicitly recognized that this is an unanswered question: “Our courts have not yet addressed whether the analysis in Smith should apply with respect to the North Carolina Constitution.”

So, to conclude...

Unless the N.C. Supreme Court reverses its 1967 holding that N.C. and U.S. free-exercise clauses are equivalent, 1.Rights of conscience will be overridden by any state law or municipal ordinance that comes into conflict with them, without balancing. 2.N.C. and Ga. will be the only states in the South/Southeast without such balancing. (See Map, next slide.) 3.A litigation strategy of fomenting religious exercise conflicts would logically focus on N.C. and Ga, so the choice may be between brief and enduring controversy, extending into 2016 and beyond.

Omits IN, AR RFRAs in 2015.