Smith v. Employment Dicision; Cooper v. Eugene School District No. 4J; A Rational Approach to Free Exercise of Religion under Oregon's Constitution
![handle is hein.journals/willr23 and id is 963 raw text is: Smith v. Employment Division; Cooper v. Eugene School
District No. 4J; A Rational Approach to Free Exercise of
Religion under Oregon's Constitution
INTRODUCTION
State constitutions may provide guarantees of individual liber-
ties superior to those afforded by the United States Constitution.'
In Oregon, the state's supreme court in several respects has en-
couraged recognition of Oregon's constitution as an additional
source of protection for fundamental liberties.' First, the court has
held that state law must be tested against the state's constitutional
guarantees before reaching any issues of federal constitutionality.3
Next, the court has insisted that it may interpret rights protected
under Oregon's constitution independently of any analysis that the
United States Supreme Court may apply to comparable federal
guarantees.4 Most significantly, the court has put these sentiments
1. See, e.g., State v. Henry, 302 Or. 510, 732 P.2d 9 (1987) (holding statute prohibit-
ing dissemination of obscene material unconstitutionally vague under article I, section 8 of
the Oregon Constitution); Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979) (holding that
the Oregon Constitution prohibits punitive damages in a defamation action). For further
discussion of the additional protections to fundamental liberties that state constitutions
may provide, see Brennan, State Constitutions and the Protection of Individual Rights, 90
HARV. L. REV. 489, 491 (1977).
2. See, e.g., State ex rel. Oregonian Publishing Co. v. Deiz, 289 Or. 277, 613 P.2d 23
(1980) (holding statute that permitted juvenile court judge to exclude press from proceed-
ing violated article I, section 10 of the Oregon Constitution); Sterling v. Cupp, 290 Or. 611,
614, 625 P.2d 123, 126 (1978) (in which court stated, The proper sequence is to analyze a
state's law, including its constitutional law, before reaching a federal constitutional claim).
For a general discussion of the emergence of independent constitutional interpretation
in Oregon, see Willner, Constitutional Interpretation in a Pioneer and Populist State, 17
WILLAMETTE L. REV. 757 (1981).
3. Cooper v. Eugene School Dist. No. 4J, 301 Or. 358, 369, 723 P.2d 298, 306 (1986),
appeal dismissed, 107 S. Ct. 1597 (1987) (citing State v. Brown, 301 Or. 268, 274, 721 P.2d
1357, 1360 (1986) (searches and seizures); State v. Kennedy, 295 Or. 260, 267, 666 P.2d
1316, 1321 (1983) (double jeopardy); Hewitt v. SAIF, 294 Or. 33, 41, 653 P.2d 970, 975
(1982) (sex discrimination)).
For Oregon Supreme Court Justice Linde's explanation of why ]udicial review of
official action under the state constitution ... is logically prior to review of the effect of the
state's action ... under the fourteenth amendment, see Linde, First Things First: Redis-
covering the States' Bills of Rights, 9 U. BAIT. L. REV. 379 (1980); Linde, Without *Due
Process': Unconstitutional Law in Oregon, 49 OR. L. REV. 125, 127-30 (1970).
4. E.g., Cooper, 301 Or. at 369, 723 P.2d at 306 (in which court declared that iden-
tity of 'meaning' or even of text does not imply that the state's laws will not be tested
against the state's own constitutional guarantees before reaching the federal constraints](ViewImageLocal?handle=hein.journals/willr23&div=35&collection=&method=preview&ext=.png&size=3)
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