Gary Stimson has posted “Reflections on Religious Freedom: Revisiting ‘Rourke v. Department of Correctional Services,'” published in the Albany Law Review. Here is the abstract:
This contribution to a symposium on religious liberty looks closely at a New York case that illustrates both the inadequacy of federal free exercise law and the importance of state constitutional law. The claimant in the case, a Native American prison guard, had been fired for refusing on religious grounds to abide by a state-wide directive governing prison guards’ hair length. Contrasting the serious burden that the directive placed on the claimant’s religious liberty with the weak justifications that the state offered for requiring the claimant’s adherence to the directive, the article argues the implausibility of the narrow interpretation of the federal Free Exercise Clause that the Supreme Court adopted in 1990 in Employment Division v. Smith. The article then uses the New York case to demonstrate the potential for circumventing the shortcomings of Smith by attention to, and development of, state constitutional law.