Professor Tarr maintains that this is unfortunate and untrue, because our constitutional system allows a state constitution to provide for less, equal, or greater separation of church and state than is mandated by the Federal Constitution. Moreover, state constitutions often incorporate a distinctive perspective on church and state relations, due to many states’ historical experiences in dealing with issues of religious freedom.
Perhaps this is the reason why the Supreme Court of the United States has “expressly recognized that state courts have the power to interpret state constitutions to be more protective of civil liberties than the Federal Constitution. ” In other words, Professor Tar is of the opinion that the development of an independent state jurisprudence of church and state is not only justified but desirable. He argues that state constitutional guarantees differ markedly in language and form from their federal counterparts.
In the case of several states, the differences are a result of so-called constitutional development whereby provisions are said to be adopted over time in a bid to resolve conflicts over highly debatable issues such as the maintenance of religious establishments and aid to sectarian schools. Still, for some states, the differences may be nothing more than a reflection of the habit to borrow provisions from sister states. Whatever the basis for these differences, notes Professor Tar, the result has been that the states have constitutionalized a distinctive perspective on the separation of church and state and on claims of religious liberty.
In the Seattle Law Review, Justin Dolan opined that many state courts have been independently interpreting state constitutional provisions as a means to afford their own citizens greater individual rights than those guaranteed by the Federal Bill of Rights. Washington, he says, is one of the many states whose courts have traditionally examined their own constitutions on issues involving individual rights without assuming that the United States Supreme Court is the final word on such matters.
He notes that in the analysis of the landmark case of State v. Gunwall, the Washington framework for independent state constitutional interpretation, demonstrates that it is appropriate for Washington courts not only to determine the constitutionality of religion-based peremptory challenges independently of the Federal Constitution, but also to extend greater protection to Washington citizens in this area of law.
The command of Article I, § 11 and the results of a Gunwall analysis establish that, as an independent source of individual rights for all Washingtonians, the Washington State Constitution prohibits religion-based peremptory challenges. Historically speaking, it is not really clear as to when or how or what led state courts to begin construing state constitutions as being more protective than the Federal Constitution.
However, an opinion of former Justice William Brennan suggests that the trend began after the United States Supreme Court retreated from, or at least temporarily suspended, the extension ‘of the federal Bill of Rights and the restraints of the due process and equal protection clauses of the fourteenth amendment’ to the states. In other words, state courts should not necessarily be content with those protections guaranteed by the Supreme Court’s interpretation of the Federal Constitution primarily because state laws are vital as an independent and protective force for fundamental liberties.