What should be remembered in cases like the First Amendment and the Washington State Constitution is the fact that when state courts extend fundamental liberties under state constitutions beyond the guarantees of the Federal Constitution, it does not necessarily follow that it is doing a repudiation of Supreme Court precedent. What it is actually doing is making an acknowledgement 'that the decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law.
Dolan opines that the independent interpretation of state constitution has for its justifications the US Supreme Court’s express recognition that “state courts have the power to interpret state constitutions to provide more protection to individuals than the Federal Constitution. ” He added that the structural difference between the Washington State Constitution and its federal counterpart also favors independent interpretation of the state constitution.
Although it is true that the Federal Constitution grants strictly described enumerated powers to the federal government, the Washington State Constitution is a set of 'limitations on the otherwise plenary power of state governments to do anything not expressly forbidden by the state constitutions or federal law. ' Hence, state constitutional provisions regarding fundamental rights tend to be more detailed and specific because they are all that stand between the people and the plenary police power of the state, notes Dolan.
Additionally, it is apparent that the Washington State Constitution and the judiciary responsible for interpreting it tend to be more sensitive to areas of local concern. In contrast to the Federal Constitution, the state constitution is easier to amend, was authored more recently, and is interpreted by elected, rather than appointed, judges. As a result, Dolan notes that the state constitution is more indicative of, and amenable to, local concerns than the Federal Constitution.
He goes on to say that the United States Supreme Court must be cognizant of its so-called limited role as an unelected and unrepresentative judiciary and more importantly, it must learn to address various concerns of the nation and formulate holdings reflective of the 'lowest common denominator of individual rights. ' This thought has been supported by another commentary by Kate Hosford in the April 2000 issue of the Washington Law Journal.
In her paper entitled “The Search for a Distinctive Religious-Liberty Jurisprudence Under The Washington State Constitution”, Hudson observes that Article 1 Section 11 of the Washington State Constitution is able to provide more protection for free exercise of religion and the separation of church and state than the First Amendment to the U. S. Constitution. As a result of the fact that the state constitution provides a broader protection for each right, Hosford notes that there naturally will arise a tension between these two provisions.
However, rather than relying on the text of the state constitution, the Supreme Court of Washington has imposed an entirely federal analysis on free exercise cases brought under Washington law. In addition, the establishment cases under Article I, Section 11, have inconsistently interpreted the language of the state constitutional provision. This Comment argues that the court should adopt a truly distinct analysis under Article I, Section 11, that would rely on the constitutional text and focus on the common goal of individual religious liberty present in both the free exercise and establishment protections.