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Published online by Cambridge University Press: 24 April 2015
“MASON: The Chinaman who scoffs at your religion; who bows down and worships blocks of wood and stone; and who defiles your temples of Christianity with his blasphemy and who refuses to declare that he is a liege subject of your government—he is to be allowed to exercise the elective franchise. A most dangerous experiment indeed is sought to be interpolated in the very first section of the Bill of Rights.”
“ESTABROOK: They require a right to build a place wherein they shall maintain their idols, wherein they may worship. I believe it is right because it is in obedience to the fundamental idea, that no man shall be interfered with in the enjoyment of his religion. He shall worship howsoever[,] whethersoever[,] and whensoever he may.”
—Proceedings of the 1871 Nebraska Constitutional ConventionIn the Nebraska Constitutional Convention of 1871, the debates between Oliver Mason, first Chief Justice of the Nebraska Supreme Court, and Experience Estabrook, first District Attorney of the Territory of Nebraska, were frequent and contentious. The two well-respected delegates squared off over many issues, but arguments over the proper role of religious freedom in the newly made State of Nebraska proved to be the most passionate and heated. Although Mason and Estabrook led the discussion over religion, neither had conventional religious beliefs.
1. Official Report of the Debates and Proceedings of die Nebraska Conslimiional Convention, 11 Pub. Neb. St. Hist. Socy. 1, 210, 214 (Sheldon, Addison E. ed. 1906)Google Scholar. There are three volumes of the debates of the 1871 Convention, printed as volumes 11, 12, and 13 of the Publications of the Nebraska State Historical Society.
2. See Morton, J. Sterling & Watkins, Albert, Illustrated History of Nebraska 72, 645 (1905)Google Scholar (stating that Mason “never affiliated with any church” and that Estabrook “lived and died an avowed spiritualist”).
3. [Hereinafter No Sectarian Aid Provision].
4. The closest is Shugrue, Richard E., Faithful to the Constitution: The Roadblock for Nebraska's Schools, 79 Neb. L. Rev. 884 (2000)Google Scholar. This excellent work focuses on education but unfortunately does not include an historical or comparative analysis of the religious freedom provisions. The last work on religious freedom in Nebraska generally is almost fifty years old. See Zabel, Orville H., God and Caesar in Nebraska: A Study of the Legal Relationship of Church and State, 1854-1954, 14 U. Neb. Stud. 1 (1955)Google Scholar. Further, I have been unable to find an article or book devoted to Nebraska religion in general.
5. See Barron v. Baltimore, 32 U.S. 243 (1833).
6. See Cleave, Rachel A. Van, State Constitutional Interpretation anil Methodology, 28 N.M. L. Rev. 199, 201 (1998)Google Scholar:
During the period called “dual federalism.” the federal Bill of Rights served only to limit the federal government from infringing on individual rights, and was not a limitation on the states. Thus, states historically had the burden of serving as the primary protectors of individual rights.
7. McCabe, Neil, The State and Federal Religion Clauses: Differences of Degree and Kind, 5 St. Thomas L. Rev. 49, 63 (1992)Google Scholar. This may help explain why “the suspicion that the state courts show less hospitality to individual rights in general … has deep roots.” Crane, Daniel A., Beyond RFRA: Free Exercise of Religion Conies of Age in the State Courts, 10 St. Thomas L. Rev. 235, 244 (1998)Google Scholar (footnotes omitted). Nebraska provides a good example of this, although in a context other than religion. In Billings v. St., 109 Neb. 596, 603 N.W. 721 (1923), the Nebraska Supreme Court departed from federal precedent and refused to apply the exclusionary rule under the “reasonable searches and seizures” provision of the Nebraska Constitution.
8. See Cantwell v. Conn., 310 U.S. 296 (1940).
9. See Everson v. Bd. of Educ., 330 U.S. 1 (1947).
10. See e.g. Van Cleave, supra n. 6, at 201 (using “federal floor” analogy). However, it is important to note that the “federal floor” analogy is not precisely accurate. Although a state court must apply the federal Bill of Rights to state or local actors, it is still possible for a state court to hold that its state constitution provides less protection than the federal Constitution. In most situations, a plaintiff would raise the federal Constitution either alone or in conjunction with the state constitution, and the fact that the state constitution offers less protection would be irrelevant because the federal Constitution would control. One can imagine a situation, however, where either for strategic reasons or through sheer negligence, a plaintiff brings only a state law claim; in this case, the plaintiff could lose even though he or she would have won if he or she had brought a federal claim. For somewhat complicated reasons, this theoretical exception has the potential to become very real in the area of religious freedom. See McCabe, supra n. 7, at 62 (“state constitutions can provide for a lower level of rights protection, particularly in the area of religion”).
11. See Abrahamson, Shirley S., Reincarnation of State Courts, 36 Sw. L.J. 951, 964 (1982)Google Scholar (“[i]n the 1960s and 1970s the lawyers and the courts got out of the habit of examining the state constitutional claim”): Brennan, William J. Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 495 (1977)CrossRefGoogle Scholar (“during the 1960's our rights and liberties were in the process of becoming increasingly federalized, [and] state courts saw no reason to consider what protections, if any, were secured by state constitutions”): and Friesen, Jennifer, State Constitutional Law: Litigating Individual Rights, Claims and Defenses at v (3d ed., Michie 2000)Google Scholar (“[exclusive reliance on federal constitutional law decided by the U.S. Supreme Court since the 1960s left the theoretical development of many state Bills of Rights in a condition approaching atrophy”).
12. See Tarr, G. Alan, Foreword to Robert D. Miewald & Peter J. Longo. The Nebraska State Constitution: A Reference Guide xx (1993)Google Scholar (arguing that reliance on state constitutions was a method of “evad[ing] the mandates of the Burger Court”): and Shapiro, Robert A., Polyphonic Federalism: State Constitutions in the Federal Courts, 87 Cal. L. Rev. 1409, 1449–1450 (1999)Google Scholar (discussing “the complaints of disappointed liberals, who sought refuge in state constitutions when the achievements of the Warren Courl appeared threatened by the Burger and Rehnquist Courts”) (footnote omitted).
13. See Brennan, supra n. 11. See Van Cleave, supra n. 6, at 199 (discussing the “famous speech” of Justice Brennan).
14. See Tarr, G. Alan, Understanding State Constitutions 165–166 (Princeton U. Press 1998)Google Scholar. State courts are “entirely free to read [their] own [s]tate's constitution more broadly than [the Supreme] Court reads the Federal Constitution, or to reject the mode of analysis used by [the Supreme] Court in favor of a different analysts of its corresponding constitutional guarantee.” City of Mesquite v. Aladdin's Castle. Inc., 455 U.S. 283, 293 (1982). If the state court includes a “plain statement” that its decision is premised on state constitutional grounds, its decision is not reviewable by the U.S. Supreme Court. See Mich. v. Long. 463 U.S. 1032, 1041 (1983); Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935): Murdock v. City of Memphis, 87 U.S. 590, 626 (1874). See generally Friesen, supra n. 11.
15. See Cauthen, James N.G., Expanding Rights Under State Constitutions: A Quantitative Appraisal, 63 Alb. L. Rev. 1183, 1202 (2000)Google Scholar. This trend of states expanding broader rights under their state constitutions is known as the “new judicial federalism.” See id. at 1191; and Shapiro, supra n. 12, at 1412.
16. See St. v. Havlat, 222 Neb. 554, 560, 385 N.W.2d 436, 440 (1986); St. v. Arnold. 214 Neb. 769, 336 N.W.2d 97 (1983). See Ryan, John M., Note, Home on the Range: The Vitality of the Open Fields Doctrine Under the Nebraska Constitution, 66 Neb. L. Rev. 844 (1987)Google Scholar (criticizing Havlat); and Killenbeck, Mark R., Note, Closing the Gates: A Nebraska Constitutional Standard for Search and Seizure, 63 Neb. L. Rev. 514 (1984)Google Scholar (criticizing Arnold). The area of search and seizure is perhaps the only occasion in which there has been a dissenting opinion on the issue of whether the Nebraska Constitution should provide more protection. See Havlat, 222 Neb. at 573, 385 N.W.2d at 447 (Shanahan. J., dissenting):
When called upon to construe the Nebraska Constitution, this court should not exhibit some pavlovian conditioned reflex in an uncritical adoption of federal decisions as the construction to be placed on provisions of the Nebraska Constitution analogous to the U.S. Constitution's.
17. See In re S.B., 263 Neb. 175, 639 N.W.2d 78 (2002).
18. See St. v. Stewart, 242 Neb. 712, 719, 496 N.W.2d 524, 529 (1993).
19. See St. v. Ryan, 257 Neb. 635, 653, 601 N.W.2d 473,487-488 (1999).
20. St. v. Simants, 194 Neb. 783, 790, 236 N.W.2d 794, 799 (1975) (per curiam). It should be noted that this opinion was premised on an unusual emergency petition, and the Court was forced to issue an opinion barely a week after oral argument. It is therefore understandable that the Court would not have time to examine the perhaps subtle differences between the United States and Nebraska Constitution. This may render its holding somewhat doubtful.
21. See id. The Court's holding in Simants that the Nebraska Constitution's guarantee of freedom of speech was no greater than that of the First Amendment was recently reaffirmed in St. v. Hookstra, 263 Neb. 116, 120, 638 N.W.2d 829, 833 (2002).
22. See Simants, 194 Neb. at 790, 236 N.W.2d at 799 (1975).
23. See St. v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002).
24. See St. v. Reeves, 258 Neb. 511, 521, 604 N.W.2d 151, 160 (2000) (per curiam). Although the Court did not explicitly hold that the State and Federal equal protection clauses were the same, it analyzed a State equal protection claim solely through use of federal precedents. See id. For more on the State's new Equal Protection Clause, see Hayes, Jason W., Amendment One: The Nebraska Equal Protection Clause, 32 Creighton L. Rev. 611 (1998)Google Scholar.
25. See Latzer, Barry, Slate Constitutions and Criminal Justice 160–161 (Greenwood Press 1991)Google Scholar. Even when it appears as if the Court may be inclined to grant greater protection, it usually changes its mind. For example, in St. v. LeGrand, 249 Neb. 1, 541 N.W.2d 380 (1995), the Nebraska Supreme Court seemed to indicate that it would allow criminal defendants to make collateral attacks against earlier convictions, even though under recent U.S. Supreme Court precedent they would not be able to do so. The Nebraska Court stated:
states are free to afford their citizens greater due process protection under their state constitutions than is granted by the federal constitution. Accordingly, the Nebraska Court of Appeals erred in presuming that this court would automatically apply to Nebraska a U.S. Supreme Court holding[.]
Id. at 8, 541 N.W.2d at 385-386 (citation omitted). However, four years later, the Court overruled LeGrand and applied the U.S. Supreme Court's holding under the Nebraska Constitution. See St. v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).
26. Van Cleave, supra n. 6, at 206 (footnote omitted).
27. Id. at 207 (footnote omitted). See Friesen, supra n. 11, § 1-6 (b).
28. In Strom v. City of Oakland, 255 Neb. 210, 583 N.W.2d 311 (1998). The Court stated that “Nebraska's constitutional right to just compensation includes compensation for damages occasioned in the exercise of eminent domain and, therefore, is broader than the federal right which is limited only to compensation for a taking.” Id. at 216, 583 N.W. 2d at 316. However, the Court immediately qualified its statement:
Notwithstanding the difference between the federal and the state constitutions, this court has analyzed the state constitutional issue of whether there has been a regulatory taking or damage for a public use by treating federal constitutional case law and our state constitutional case law as coterminus.
Id.
29. In 1997, the Nebraska Constitutional Revision Commission proposed adding a provision to the Bill of Rights: “The rights granted to the people in this Constitution are not to be construed as limited by the interpretation placed on similar provisions in the Constitution of the United States.” Report of the Nebraska Constitutional Revision Commission 7 (1997)Google Scholar. Needless to say, the proposal did not become law. The Commission stated:
States courts still have the latitude to announce decisions which may afford their citizens greater constitution protections …. On several recent occasions, the Nebraska Supreme Court has voiced this precise and welcome declaration. Very few Nebraska citizens, however, are aware of a heightened protection of their rights that the State's Supreme Court has said is possible in appropriate cases.
Id.
These “several recent occasions” on which the Court is supposed to have invited state constitutional claims have not come to my attention.
30. See Van Cleave, supra n. 6, at 219; and St. v. Gunwall, 720 P.2d 808, 811 (Wash, 1986).
31. 720 P.2d 808 (Wash, 1986).
32. Some commentators feel that states should adopt a “primacy” approach and always decide issues under their state constitutions first, reaching federal precedent only when the state constitution does not provide protection. On this view, there is no more need for a state to “justify” why it departed from federal precedent than there would be for a state such as Washington to explain why it departed from a decision of the Louisiana Court of Appeals. See e.g. Van Cleave, supra n. 6, at 217.
33. Gunwall, 720 P.2d at 811.
34. See e.g. Parsell, Stuart G., Note, Revitalization Religion Under State Constitutions: A Response to Empl. Div. v. Smith, 68 Notre Dame L. Rev. 747, 770 (1993)Google Scholar (“Scholars and judges, who have focused on the recent movement of state courts increasing individual rights by relying independently on state constitutions, argue that an historical analysis is an essential element for an independent state constitutional interpretation”): Gottlieb, Stephen E., Forward: Symposium on State Constitutional History: In Search of a Usable Past, 53 Alb. L. Rev. 255, 258 (1989)Google Scholar (“[c]onstitutional history is valuable whether or not one subscribes to a jurisprudence of original intent”); and McConnell, Michael W., The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1415 (1990)CrossRefGoogle Scholar (“[e]ven opponents of originalism generally agree that the historical understanding is relevant, even if not dispositive”).
35. See Brittle v. People, 2 Neb. 198, 205, 1872 WL 6048, at * 4 (1872).
36. See Rosewater, Victor, The Political and Constitutional Development of Nebraska, 5 Trans. & Rep. Neb. Hist. Socy. 240, 243 (1893)Google Scholar.
37. See id. at 247.
38. See id.
39. Id. at 248.
40. See Clerk of the Legislature, Nebraska Bluebook 200-01, at 65 (45th ed. 2001): Federal Writers' Project of the Works Progress Administration for the State of Nebraska, Nebraska: A Guide to the Cornhusker State 116 (1939)Google Scholar: and Nebraska: The Land and the People 198 (Sheldon, Addison E. ed., Lewis Publg. Co. 1931)Google Scholar. See generally Creigh, Dorothy W., Nebraska: A Bicentennial History 29–30 (1977)Google Scholar. It is important to note than in no sense did the Christian missionaries “bring” religion to present-day Nebraska. The Otoe and Pawnee Native American tribes had deeply-held religious beliefs of their own. See generally Weaver, Jace, Native American Religious Identity: Unforgotten Gods (1998)Google Scholar: and DeLoria, Vine, God is Red: A Native View of Religion (1973)Google Scholar. One Nebraskan historian stated that “[t]he missionary work among Nebraska Indians did not convert the tribes to Christianity” because “the Indian already had a religion of his own, which had been slowly evolved through ages of tribal experience.” Sheldon, supra, at 208.
41. Sheldon, supra n. 40, at 198. Another source describes Merrill as “an almost morbid religious devotee.” See Morton & Watkins, supra n. 2, at 70.
42. See Sheldon, supra n. 40, at 202. One source dates the arrival of the Congregationalist missionaries as 1834. See Federal Writers' Project, supra n. 40, at 118.
43. See Federal Writers' Project, supra n. 40, at 116.
44. See supra, n. 40.
45. See Federal Writers' Project, supra n. 40, at 117. See also Olson, James C., History of Nebraska 99 (1966)Google Scholar (“Churches, like schools, faced an uphill struggle to gel started and keep going.”).
46. See Federal Writers' Project, supra n. 40, at 117-119.
47. See Johnson, Harrison, Johnson's Histoty of Nebraska 148 (1880)Google Scholar. For histories of each major denomination in early Nebraska history, see Morton, J. Sterling & Watkins, Albert, Illustrated History of Nebraska vol. 2 (1906)Google Scholar. Note that these histories are written by church officials and generally discuss only their respective denomination's internal history and do not address what sort of religious climate Nebraska had at the time.
48. See Federal Writers' Project, supra n. 40, at 117. For more on the Kansas-Nebraska Act, see Creigh, supra n. 40, at 46-50: and Luebke, Frederick C., Nebraska: An Illustrated History 43–44 (1995)Google Scholar.
49. Rosewater, supra n. 36, at 252. The text of the Act is reprinted in Western Historical Company. Histoty of the State of Nebraska 103–106 (1882)Google Scholar.
50. See Zabel, supra n. 4, at 22.
51. See Zabel, supra n. 4, at 23. A good discussion on the special privileges afforded to religious groups by the Nebraska Legislature can be found in Zabel, supra n. 4, at 9-13 & 26-37.
52. See Morton & Watkins, supra n. 2, at 201-202. The second Territorial Legislature attempted to find a joint chaplain for both of its Houses, but were unable to come to an agreement over who should be elected, and each House was forced to elect its own chaplain. See id. at 265.
53. See Ancient & Accepted Scottish Rite of Freemasonry v. Bd. of County Commissioners, 122 Neb. 586, 596, 241 N.W. 93, 96 (1932).
54. See Olson, supra n. 45, at 122.
55. Luebke, supra n. 48, at 77. See Miewald & Longo, supra n. 12, at 4 (“Statehood, for many, seemed an unnecessary extravagance”). Whether Democrat or Republican,
Nebraska's founders were not distinguished statesmen. Compared to the illustrious company who gathered … to create the United States of America, Nebraska's first political leaders were a rude, self-serving lot … they were interested in economic success and little else.
Id. at 48. See Olson, supra n. 45, at 116 (“politics in Nebraska territory were lusty, the debates frequently acrimonious, and the proceedings often characterized by the excesses common to a frontier society”). The rancorous debates between Republicans and Democrats are somewhat reminiscent of today's political climate. However, it should be kept in mind that in many ways today's Democrats would have been 1860's Republicans, and vice versa. See Sheldon, supra n. 40, at 332-333 (stating that the Democratic Party was “the party of conservatism [and] strict construction of the constitution” as opposed to the Republican Party, which was “under control of the radicals and fanatical abolitionists”).
56. See Winter, A.B., Constitutional Revision in Nebraska: A Brief History and Commentary, 40 Neb. L. Rev. 580, 580 (1961)Google Scholar; Miewald & Longo, supra n. 12, at 4. See generally Official Report of the Debates and Proceedings of the Nebraska Constitutional Convention, 13 Pub. Neb. St. Hist. Socy. 1, 473–75 (Watkins, Albert ed., 1913)Google Scholar.
57. See Olson, supra n. 45, at 123, See Sheldon, supra n. 40, at 336.
58. 13 Stat. 47 (1864). See Western Historical Company, supra n. 49, at 122-124 (reprinting text of the enabling act).
59. See Olson, supra n. 45, at 123.
60. See Miewald & Longo, supra n. 12, at 5. Adjourning “sine die” means adjourning without setting a date to reconvene.
61. See id. at 5; Winter, supra n. 56, at 581, See generally Watkins, supra n. 56, at 479-487.
62. Winter, supra n. 56, at 581.
63. There are different theories as to who constituted this secret committee, and it's likely that we'll simply never know for sure. See Olson, supra n. 45, at 123 (“A voluntary committee, the composition of which is not definitely known, met secretly to draft a constitution”); Watkins, supra n. 56, at 495 (“[T]he constitution of 1866 was compiled by a committee of nine appointed by the legislature that year”); Miewald & Longo, supra n. 12, at 5 (“Even contemporary observers were uncertain about the exact membership of the committee that met to put together the document.”): Brittle v. People, 2 Neb. 198, 211, 1872 WL 6048 at * 8 (1872) (“the constitution was originally drafted in a lawyer's office by a few self-appointed individuals”); and Raymond, Bruce M., Nebraska's Constitution: An Historical Study 10 (1937) (unpublished Ph.D. thesis, U. Neb. (Lincoln) (available at University of Nebraska-Lincoln Love Library))Google Scholar (stating that nine members of the legislature met with Experience Estabrook to draft the document); Sheldon, supra n. 40, at 338 (discussing various theories as to who the drafters were).
64. Olson, supra n. 45, at 124. See Sheldon, supra n. 40, at 340-341; and Miewald & Longo, supra n. 12, at 6. Morton and Watkins sum it up by saying “While this state document of gravest importance was clandestinely and arbitrarily framed it was carried through the legislature in an indefensibly bold and arbitrary matter.” Morton & Watkins, supra n. 2, at 511.
65. See Rosewater, supra n. 36, at 258 (“the action of the territorial legislature in submitting a constitution to the people was entirely extra-legal and without the shadow of authority”). See also Brittle, 2 Neb. at 215, 1872 WL 6048 at * 9 (“we have noted that it was submitted by nobody lawfully empowered to do so”).
66. See Miewald & Longo, supra n. 12, at 7.
67. Rosewater, Victor, A Curious Chapter in Constitution-Changing, 36 Pol. Sci. Q. 409, 409 (1921)CrossRefGoogle Scholar.
68. Olson, supra n. 45, at 125.
69. Luebke, supra n. 48, at 78.
70. See Miewald & Longo, supra n. 12, at 7. See generally Watkins, supra n. 56, at 488-495. A more in-depth look at what Nebraska was like as a Territory can be found in Barrett, Jay Amos, Nebraska and die Nation 38–51 (2d ed. 1898)Google Scholar.
71. See Sheldon, supra n. 40, at 341.
72. See Miewald & Longo, supra n. 12, at 7.
73. See id.
74. See Clerk of the Legislature, supra n. 40, at 67, Johnson's veto message is reprinted in Raymond, supra n. 63, at 207-209.
75. See Hickey, Donald R., Nebraska Moments: Glimpses of Nebraska's Past 42 (U. Neb. Press 1992)Google Scholar. This source also provides a good general discussion of the drive towards statehood. See id. at 37-43.
76. See Rosewater, supra n. 36, at 260. The full text of the proclamation of statehood is reprinted in Luebke, supra n. 48, at 79.
77. See e.g. Sheldon, supra n. 40, at 578 (“There were wide variations in the religious aspect of different neighborhoods. It could not be otherwise, for land hunger, not freedom to worship God, was the magnet which drew them together on the frontier”): Zabel, supra n. 4, at 3 (“Nebraska has had numerous religious sects represented within its borders from the earliest days of its history”): Burch, L.D., Nebraska as it is: Resources, Advantages and Drawbacks, of the Great Prairie State 14, 108 (C.S. Burch & Co. 1878)Google Scholar (discussing the “diversity of religious … thought” in Nebraska and stating that “[t]here are hundreds of pretty churches … representing almost every shade of religious thought and belief in America”); and Woolworth, James M., Nebraska in 1857, at 30 (C.C. Woolworth 1857)Google Scholar (stating “[t]he various religious denominations are taking early and strong hold of Nebraska” and describing the location of Congregationalist, Presbyterian, Campbellite, Methodist, Episcopal, and Baptist churches).
78. See Johnson, supra n. 47, at 144 (“[t]heir religious convictions, and the expression of them, is free as the air they breathe on our vast prairies”): and Burch, supra n. 77, at 14 (“[t]here is vastly more freedom of thought and independent action in Nebraska than in any of the older States”).
79. See Johnson, supra n. 47, at 144. Compare this statement with Miewald & Longo, supra n. 12, at 36 (“[b]y 1875. Nebraska contained a number of mutually antagonistic denominations”): Olson, supra n. 45, at 344 (“religious issues provided grounds for much high controversy, particularly in the early years”). I tend to think that Johnson's statement about the various denominations living together peacefully is probably inaccurate, both because it simply does not accord with the facts, and because his book reads more like an advertisement for the new state than an objective description of its political and religious climate.
80. See Sheldon, supra n. 40, at 297.
81. See id. at 334.
82. See infra pp. 116-118.
83. See Sheldon, supra n. 40, at 564.
84. Another explanation may be that rural communities, with fewer denominations present, suffered little religious strife, while the “urban” areas of eastern Nebraska (Omaha and Lincoln) suffered much more. See id. at 670 (“[i]n the early rural period union [interdenominational) religious meetings were the rule. In the absence of a settled pastor preachers of every denomination were eagerly welcome”).
85. As mentioned, the development and language of the Religious Freedom Clause and the No Sectarian Aid Clause will be discussed separately in Part IV and Part VII, respectively.
86. As is well known, the United States Constitution does not incorporate God or refer to any other divinity. In contrast, the Preamble of the 1866 Nebraska Constitution began “We the people of Nebraska, grateful to Almighty God for our freedom …” In the 1871 Constitution, defeated at the polls, the proposed Preamble was even more religious, beginning “We, the people of the State of Nebraska, grateful to Almighty God for the civil, political and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavours …” The Preamble proposed in the 1875 Constitutional Convention, (and the one existing today), retained the “grateful to Almighty God” language of the 1866 Constitution but did not adopt the additional language of the 1871 Constitution. See Nebraska Constitutions of 1866, 1871 & 1875 and Proposed Amendments Submitted to the People September 21, 1920, at 6–7 (Sheldon, Addison E. ed. 1920)Google Scholar (this rare but valuable work arranges all of the provisions of past and present Nebraska constitutions in parallel columns for easy comparison).
There was also a motion in the Constitutional Convention of 1871 to completely strip the Preamble of all of its religious language, but an opponent of the proposal stated that “[w]hen the people of Nebraska cannot be thankful to Almighty God for his blessings, I think they are pretty hard up,” and the motion lost by a vote of 44-2. See Sheldon, supra n. 1, at 522. Interestingly enough, Experience Estabrook was the only person, other than its sponsor, to vote in favor of the proposal. See Stanley, Ruth M., N.K. Griggs and the Nebraska Constitutional Convention of 1871, 46 Neb. Hist. 39, 49 (1965)Google Scholar. Because the Nebraska Supreme Court has stated that “the Preamble is not a part of the Constitution, but only a general statement of purpose,” Omaha Natl. Bank v. Spire, 223 Neb. 209, 215, 389 N.W.2d 269, 274 (1986). I do not further consider its implications on the other religion clauses of the Nebraska Constitution.
87. Miewald & Longo, supra n. 12, at 10.
88. Olson, suprra n. 45, at 179 (footnote omitted).
89. See Miewald & Longo, supra n.12, at 10; and Olson, supra n. 45, at 179.
90. See Miewald & Longo, supra n. 12, at 10.
91. See id. at 31: Winter, supra n. 56, at 583: Clerk of die Legislature, supra n. 40, at 212: and Olson, supra n. 45, at 182.
92. See Olson, supra n. 45, at 182 (“a shorthand report of the proceedings was dispensed with as loo expensive, with the result that there is no verbatim report of the convention”); and Miewald & Longo, supra n. 12, at 12:
It was a somber group which met and frugality was their driving motivation. The members cut back on their own expenses, including the elimination of a verbatim shorthand transcript of the proceedings. Therefore, our knowledge of this meeting is not as complete as the convention of 1871.
However, three newspapers and (he Convention Secretary kept a journal of motions made at the 1875 Convention. These are reprinted in Watkins, supra n. 56, at 506. Apparently a few of the original committee reports still exist, but as far as I can tell these have never been printed. See Sheldon, supra n. 1, at 8.
93. Sheldon, supra n. 1, at 10. Sheldon states that he discovered the transcripts of the 1871 Convention debates in a statehouse vault in 1899. See id. at 7. See Raymond, supra n. 63, at 49-52 (discussing various stories of the discovery and existence of the minutes and journals of the 1871 and 1875 conventions).
94. See Olson, supra n. 45, at 180; Miewald & Longo, supra n. 12, at 10: and Winter, supra n. 56, at 583. Raymond states that the Preamble and the Bill of Rights of the Illinois Constitution were copied almost verbatim. See Raymond, supra n. 63, at 24. Sheldon explains that “The new Illinois constitution was generally regarded in the west as the best and latest expression of a prairie people in the structure of government.” Sheldon, supra n. 40, at 519. Because the Nebraska Constitution of 1871 (and of 1875) was modeled on it, the Illinois Constitution and the way it has been interpreted may be a valuable source for understanding the meaning of the Nebraska Constitution. Although such an analysis is outside the scope of this Article, more information on the Illinois Constitution can be found in Salyer, Glen V., Free Exercise in Illinois: Does the State Constitution Envision Constitutionally Compelled Religious Exemptions?, 19 N. Ill. U. L. Rev. 197 (1998)Google Scholar and Cornelius, Janet, Constitution Making in Illinois, 1818-1970 (1972)Google Scholar.
95. The Convention debated over whether the chaplain should be paid or instead whether a committee of volunteers from local churches should be invited. After the former option was agreed to, the Convention voted on which particular religious leader they wished to be chaplain. See Sheldon, supra n. 1, at 98-100.
96. An example of a prayer recited in the 1871 Convention is:
Almighty and allwise God, who art able to command the light to shine out of darkness, make plain before us the path of duty, we beseech Thee. May this convention provide well for the State: may the work here done be strong enough to endure the shock of parties and the wear of years and to God, the only wise, shall be praise through Jesus Christ, even praise and glory for ever. Amen.
See Sheldon, supra n. 1, at 395-396.
97. See id. at 70, 136.
98. See id. at 51.
99. This proposal would eventually become Art. VIII, § 3 of the 1871 Constitution.
100. See Official Report of the Debates and Proceedings of the Nebraska Constitutional Convention, 12 Pub. Neb. St. Hist. Socy. 1, 427 (Sheldon, Addison E. ed., 1907)Google Scholar. See Abbott, Othman A., Reflections of a Pioneer Lawyer, 11 Neb. Hist. Mag. 1, 169–170(1928)Google Scholar. The Methodist Episcopal Church Conference had adopted a resolution “That we are in favor of equal taxation of all property other than state, county and municipal possessions.” Raymond, supra n. 63, at 34.
101. See Sheldon, supra n. 100, at 427.
102. Id.
103. Id.
104. See Olson, supra n. 45, at 180 (stating that the provision was “inserted at the insistence of certain Protestant groups who looked askance at the fine churches being constructed by the Catholics in Omaha and elsewhere”); and Miewald & Longo, supra n. 12, at 11 (stating that the provision “was urged by poor Protestant congregations, particularly Methodist, and alienated the wealthier Catholic and Episcopalian churches in Omaha”). Othman Abbott, one of the delegates to the 1871 Convention, later recalled the proposal in his memoirs:
The convention spent two days in the discussion of the subject of this resolution. There was a vigorous and lengthy debate. The majority in favor of it was small. Among the majority were the few who were opposed to all churches and all religions and the many belonging to the Methodist and other Protestant churches who worshipped in the modest churches, built in accord with their needs and necessities and who were opposed to what they considered extravagant church buildings.
Abbott, supra n. 100, at 170.
105. Sheldon, supra n. 40, at 455.
106. See Sheldon, supra n. 100, at 429.
107. Id. This is likely the passage Abbott is referring to in his memoirs when he states: I remember that the eloquence and the pathos were all in favor of “taxing the rich man's church.” There was a good deal of talk of the softly cushioned pews, the shaded lights through stained glass windows, the warmth and comfort that wealth provided while without the poor widow passed by on the way to her modest house of worship, “mingling her tears with the rain drops that froze as they fell.”
Abbott, supra n. 100, at 170.
108. See Official Report of the Debates and Proceedings of the Nebraska Constitutional Convention, 13 Pub. Neb. St. Hist. Socy. 1, 233–251 (Watkins, Albert ed. 1913)Google Scholar.
109. See e.g. id. at 238.
110. Id. at 249. The speaker also cited the proposal to remove “Almighty God” from the Preamble as another example of the Convention's hostility toward religion. See discussion in supra n. 86.
111. For more on the Constitution of 1871, see generally Watkins, supra n. 108, at 496-502.
112. Western Historical Company, supra n. 49, at 144. Sources disagree as to the other major factor in its defeat; some say that it was a provision regulating railroads, while others say it was a provision making shareholders liable for the debts of corporations. See Sheldon, supra n. 40, at 455 (railroads); and Abbott, supra n. 100, at 170-171 (corporations).
113. Abbott, supra n. 100, at 171.
114. See Western Historical Company, supra n. 49, at 145.
115. See Olson, supra n. 45, at 180.
116. See Sheldon, supra n. 40, at 457.
117. See id.
118. See id. at 458. The override attempt succeeded in the Senate, but failed in the House. See Raymond, supra n. 63, at 31.
119. Although outside the scope of this Article, the scandals that took place in 1870s Nebraska provide important insight into its political process. The period included embezzlement, fraud, impeachment, and a period where the Governor barred the doors to the capitol building and eventually cut off the coal supply to force the Legislature to adjourn. See generally Creigh, supra n. 40, at 83-84: Western Historical Company, supra n. 49, at 136-148.
120. See Winter, supra n. 56, at 583. Sheldon attributes this overwhelming vote to the fact that over 100,000 people in central and western Nebraska simply did not have any representation in the Legislature under the 1866 Constitution. See Sheldon, supra n. 40, at 511.
121. See Sheldon, Addison E., The Nebraska Constitutional Convention, 1919-20, 15 Am. Pol. Sci. Rev. 391, 391 (1921)CrossRefGoogle Scholar. See also Lobingier, Charles S., The Nebraska Constitution: Some of its Original and Peculiar Features, 10 Pub. Neb. St. Hist. Socy. 96, 100 (1902)Google Scholar: and Sheldon, supra n. 40, at 493-495. A first-hand account can be found in Abbott, supra n. 100, at 160-168.
122. See supra p. 115. The primary reason we do not have transcripts is because the grasshoppers caused such economic turmoil in the State that the delegates fell a shorthand reporter would be a luxury. See Olson, supra n. 45, at 182.
123. See Winter, supra n. 56, at 583; Miewald & Longo, supra n. 12, at 31; and Abbott, supra n. 100, at 172. Raymond disputes this, stating:
Some students of Nebraska history seem to have been satisfied with the assumption that the document produced in 1875 was merely a re-hash of the defeated document of 1871. The newspapers of the period, as has been shown above, certainly did not regard it as such, as many of them mercilessly criticized the convention for the completeness of its revision.
Raymond, supra n. 63, at 74.
124. See Olson, supra n. 45, at 182.
125. See Watkins, supra n. 108, at 578.
126. See Sheldon, supra n. 40, at 517.
127. See Watkins, supra n. 108, at 572.
128. See id.
129. See Sheldon, supra n. 40, at 519 (“In section four relating to religious freedom more emphasis is given to religion, thereby interpreting the more active religious sentiment of 1875.”). This change will be discussed in Pari IV, supra.
130. See Olson, supra n. 45, at 183.
131. See Rosewater, supra n. 67, at 411. The only amendment to pass in this period was a provision to raise the pay of state legislators, which succeeded “thanks to the dubious expedient of a ‘recount’” conducted by the lawmakers. Id.
132. See Sheldon, supra n. 121, at 394.
133. See Proceedings of die Constitutional Convention 1919-20 vol. 1. at 1 (Barnard, Clyde H. ed. 1920)Google Scholar.
134. See id. at 11-12.
135. See Proceedings of the Constitutional Convention 1919-20 vol. 2, 2882–2883 (Barnard, Clyde H. ed. 1920)Google Scholar.
136. Strife between Catholics and Protestants was frequent at the time of the Convention. In 1919, anti-Catholicism caused the Nebraska Legislature to prohibit nuns from wearing their habits while teaching in public schools. See Zabel, supra n. 4, at 118-119. In the same session, the Legislature narrowly rejected a proposal to require Bible reading in public schools, see id. at 112, a proposal backed by Protestants and opposed by Catholics. See id. at 4 (“the demand for Bible reading in the public schools has usually been backed by Protestants and opposed by Catholics and Jews”). The Bible reading argument was caused by the Nebraska Supreme Court's decision to forbid certain kinds of Bible reading in public schools in St. ex rel. Freeman v. Scheve, 65 Neb. 853, 91 N.W. 846 (1902), aff on rehrg, 65 Neb. 877, 93 N.W. 169 (1903) (discussed in infra nn. 280-293 and accompanying text). Further agitation between the two sects was caused by World War I, leading many “patriotic” Americans to assert national unity could come only through universal public education and that therefore private and parochial schools should be eliminated. See supra n. 138. See also Zabel, supra n. 4, at 3 (“Protestants have always greatly outnumbered Catholics in Nebraska”); and Luebke, supra n. 48, at 179 (discussing heated differences between religious groups in Nebraska).
137. Proposal Number 21 stated:
The right of parents to instruct and to train their children in the doctrine, the discipline and the rites of any religion—not immoral—until such child reaches the age of discretion—shall not be questioned. But the right of the state to control and to direct the purely secular education of children within its jurisdiction is hereby declared to be absolute, universal, indivisible and inviolate.
Barnard, supra n. 133, at 67.
138. Id. at 442. The bill's backer also argued that his bill would promote national unity and diminish the influence of Catholicism. See id. at 444, 445.
139. Id. at 450.
140. See id. at 67, 76.
141. See id. at 335.
142. 65 Neb. 853, 91 N.W. 846 (1902). aff. on rehrg., 65 Neb. 877, 93 N.W. 169 (1903).
143. See supra n. 136.
144. See Barnard, supra n. 133, at 335.
145. Id. at 1116.
146. Id. at 1117.
147. Id. at 1119-1120.
148. Id. at 1123.
149. See id. at 1125.
150. Id. at 1127.
151. A complete list of the amendments can be found in Sheldon, supra n. 86.
152. This change will be discussed in depth in Part VII, supra.
153. Johnson, supra n. 47, at 143.
154. Luebke, supra n. 48, at 178.
155. See Olson, supra n. 45, at 343. It should be noted that a church membership rate of 34% is not abnormally low for the time period, but is significantly less than the 1990 rate of 63.8%. See e.g. Butler, Jon, Protestant Success in the New American City, 1870-1920, in New Directions in American Religions History 296, 313 (Stout, Harry S.et al. eds. 1997)Google Scholar (noting that church membership in several cities the decades before and after the turn of the century ranged from 32 to 46%); Stark, Rodney, Sociology 426 (5th ed. 1994)Google Scholar (stating Nebraska's 1990 percentage of church membership). See generally Fink, Roger & Stark, Rodney, The Churching of America, 1776-1980: Winners and Losers in our Religious Economy (1992)Google Scholar.
156. Sheldon, supra n. 40, at 670.
157. See id.
158. Zabel, supra n. 4, at 183.
159. St. v. Gunwall, 720 P.2d 808, 811 (Wash, 1986).
160. See e.g. Patrick, Jeremy, Sacred Texts: The Myth of Historical Literalism, Humanist 22 (09-Oct. 2001)Google Scholar.
161. 1866 Neb. Const. art. I. § 16, repr. in Sheldon, supra n. 86, at 6, 8.
162. See supra n. 94.
163. 1871 Neb. Const, art. I, § 3. repr. in Sheldon, supra n. 86, at 6.
164. Sheldon, supra n. 1, at 219. The proposal would have changed the Clause to read:
The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed; but the civil rights, privileges, or capacities of any person shall in no wise be increased or diminished on account of any religious opinion or belief. No person shall be required to attend or support any ministry or place of worship; nor shall any preference be given by law to any religious denomination or mode of worship.
165. Id.
166. See id.
167. See supra nn. 161 & 163 and accompanying text. The possible implications of a distinction between “exercise” and “conscience” is discussed, supra p. 128.
168. See supra n. 161 and accompanying text.
169. See supra n. 163 and accompanying text.
170. See supra n. 92.
171. Sheldon, supra n. 86, at 9. See Sheldon, supra n. 40, at 519 (“In section four relating to religious freedom more emphasis is given to religion, thereby interpreting the more active religious sentiment of 1875.”); and Raymond, supra n. 63, at 236 (“A more positive recognition of religion [was] added.”).
172. Neb. Const, art. 1, § 4 (bracketed numbering added). Each portion of the Provision corresponding to a bracketed number will be referred to as a clause.
173. See Shugrue, supra n. 4, at 897-898.
174. Friesen, supra n. 11, § 4-5.
175. McConnell, supra n. 34, at 1489.
176. Id. at 1490.
177. Id. at 1488. McConnell was discussing the meaning of these phrases at the time of the drafting of the United States Constitution. It's unknown if their meaning changed substantially by the time of the drafting of the Nebraska Constitution.
178. See id. at 1460 (“[t]he word ‘worship’ usually signifies the rituals or ceremonial acts of religion, such as the administration of sacraments or the singing of hymns”). Indeed, one early Nebraska case hinged directly on this phrase, finding that a public schoolhouse could be used for occasional religious ceremonies because this did not convert it into a “place of worship.” See St. ex rel. Gilbert v. Dilley. 95 Neb. 527, 145 N.W. 999 (1914) (discussed infra nn. 295-301 and accompanying text).
179. Friesen, supra n. 11, § 4-2. However, Friesen states that state courts often interpret their “no preference” provisions in a manner analogous to the United States Supreme Court's Lemon test. See id.
180. See Larson v. Valente. 456 U.S. 228 (1982). See generally Evans, Daniel W., Note, Another Brick in the Wall: Denominational Preferences and Strict Scrutiny Under the Establishment Clause, 62 Neb. L. Rev. 359 (1983)Google Scholar: and Patrick-Justice, Jeremy, Strict Scrutiny for Denominational Preferences: Larson in Retrospect, N.Y. City L. Rev. (forthcoming 2005)Google Scholar. California has apparently interpreted its constitution's “no preference” language to prohibit more conduct than Lemon or Larson would. See e.g. Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991) (discussing cases).
181. See supra n. 172 and accompanying text.
182. Art. IX, § 2 of the Nebraska Constitution allows the Legislature to exempt property used for religious purposes from taxalion. One could easily write an entire article about Nebraska jurisprudence on the subject and the issue continues to be litigated today. See e.g. Neb. Annual Conf. United Methodist Church v. Scotts Bluff County Bd. Equalization, 243 Neb. 412, 499 N.W.2d 543 (1993); Indian Hills Community Church v. County Bd. of Equalization, 226 Neb. 510, 412 N.W.2d 459 (1987); Berean Fund. Church Council, Inc. v. Bd. of Equalization, 186 Neb. 431, 183 N.W.2d 750 (1971); Ancient & Accepted Scottish Rite of Freemasonty v. Bd. of County Commissioners, 122 Neb. 586, 241 N.W. 93 (1932), overruling Scottish Rite Bldg. Co. v. Lancaster County, 106 Neb. 95, 182 N.W. 574 (1921); Scott v. Socy. of Russian Israelites, 59 Neb. 571, 81 N.W. 624 (1900); and First Christian Church v. City of Beatrice, 39 Neb. 432, 58 N.W. 166 (1894). See Doyle, James A., Note, Tax Exemption in Nebraska, 11 Neb. L. Bull. 430 (1933)Google Scholar: Zabel, supra n. 4, at 160-181.
183. Most of the disputes revolved around who was the proper owner of church property when a schism appeared within a church, but a surprising number involved attempts by a sponsoring organization to expel the current religious leader of a church. Although today we would consider much of the Court's action in resolving these intra-church disputes as bordering on unconstitutional excessive entanglement with religion, defendants never seemed to raise this as a bar to the Courfs jurisdiction. See Reichert v. Saremba, 115 Neb. 404, 213 N.W. 584 (1927); St. Paul English Lutheran Church v. Stein. 115 Neb. 114, 211 N.W. 611 (1926): Gaddis v. St., 105 Neb. 303, 180 N.W. 590 (1920); Kennesaw Free Baptist Church v. Lattimer, 103 Neb. 755, 174 N.W. 296 (1919); Parish of the Immaculate Conception v. Murphy, 89 Neb. 524, 131 N.W. 949 (1911); St. Vincent 's Parish v. Murphy, 83 Neb. 630, 120 N.W. 187 (1909); Bonacum v. Murphy, 71 Neb. 463, 98 N.W. 1030 (1904), rev'd on rehrg, 71 Neb. 487, 104 N.W. 180 (1905); Bonacum v. Harrington, 65 Neb. 831, 91 N.W. 886 (1902); St. Andrew's Church v. Shaughnessy, 63 Neb. 792, 89 N.W. 261 (1902): Wehmer v. Fokenga, 57 Neb. 510, 78 N.W. 28 (1899): Moseman v. Heitshusen, 50 Neb. 420, 69 N.W. 957 (1897); Powers v. Budy, 45 Neb. 208, 63 N.W. 476 (1895); Pounder v. Ash. 36 Neb. 564, 54 N.W. 847 (1893). rev'd on rehrg, 44 Neb. 672, 63 N.W. 48 (1895): Jones v. St., 28 Neb. 495, 44 N.W. 658 (1890); Wicks v. Nedrow, 28 Neb. 386, 44 N.W. 457 (1889); and Barton v. Erickson, 14 Neb. 164, 15 N.W. 206 (1883). See generally Zabel, supra n. 4, at 48-63.
184. The discussion of cases in this section will proceed roughly chronologically. There are some cases in which both free exercise and anti-establishment claims were raised, and these will be discussed in the part of this article corresponding to the primary claim raised. Finally, there are some cases in which free exercise or anti-establishment claims could have been raised (at least under today's standards), but were not. These will not be discussed in the text. See e.g. Roberts v. St., 82 Neb. 651, 118 N.W. 574 (1908) (upholding conviction of defendant charged with “profane swearing” under a statute which provided that “If any person of the age of fourteen years and upwards shall profanely curse or damn, or profanely swear by the name of God, Jesus Christ, or the Holy Ghost, each and every person shall be fined in a sum not exceeding one dollar nor less than twenty-five cents for each offense.”).
185. See St. v. Buswell, 40 Neb. 158, 58 N.W. 728 (1894).
186. Id. at 159, 58 N.W. at 729.
187. See id. at 163, 58 N.W. at 730. Christian Scientists “normally rely wholly on the power of God for healing rather than on medical treatment.” Mead, Frank S. & Hill, Samuel S., Handbook of Denominations in the United States 106 (10th ed., Abdingdon Press 1995)Google Scholar.
188. See Buswell, 40 Neb. at 165, 58 N.W. at 731.
189. See id. at 161-162, 58 N.W. at 729-730.
190. Id. at 160, 58 N.W. at 729. Because Buswell was acquitted, the only question facing the Court was whether the instruction given was proper.
191. Id. at 166, 58 N.W. at 731.
192. Simony is the Biblical sin of expecting money in exchange for conferring sacred or spiritual things. See Zabel, supra n. 4, at 15.
193. Buswell, 40 Neb. at 161, 58 N.W. at 729.
194. Id. at 166, 58 N.W. at 731.
195. Id.
196. See id. at 68-69, 58 N.W. at 731-732.
197. Id. at 169, 58 N.W. at 732.
198. Id.
199. Id. (emphasis added).
200. Id. (emphasis added). A few years after its decision in Buswell, the Nebraska Supreme Court stated that “With the rule announced in that case, we are fully satisfied, although it is possible that the decisions of some other courts are in conflict with it.” Little v. St., 60 Neb. 749. 751-752, 84 N.W. 248, 249 (1900). The Christian Scientists were successful in the long run, however, as they were able to use the decision in support of a legislative exemption from the law, which finally passed in 1921. See Zabel, supra n. 4, at 16-17. The Nebraska Christian Science Church would later describe Buswell as follows:
As this was the first case ever decided against a Christian Scientist, in a court of last resort, for the practice of praying for the recovery of the sick, it would certainly have been followed as a precedent by the courts of other states if the law had been correctly stated. But this opinion of the Nebraska commissioner stands alone … and the decision, even in Nebraska, has been a dead letter for a decade[.]
Morton & Watkins, supra n. 47, at 480.
201. Because Neb. Dist. of Evangelical Lutheran Synod v. McKelvie, 104 Neb. 93, 175 N.W. 531 (1919) and Meyer v. St., 107 Neb. 657, 187 N.W. 100 (1922) have been discussed at length elsewhere (and because Meyer is one of the most famous United States Supreme Court cases) I will not spend as much time on them as they would otherwise merit. See e.g. Ross, William G., Forging New Freedoms: Nativism, Religion, and the Constitution, 1917-1927 (1994)Google Scholar: Bybee, Jay S., Substantive Due Process and Free Exercise of Religion: Meyer, Pierce and the Origins of Wisconsin v. Yoder, 25 Cap. U. L. Rev. 887 (1996)Google Scholar; and Zabel, supra n. 4, at 145-148. I will also focus almost exclusively on their treatment by the Nebraska Supreme Court and will not discuss Meyer's impact on Federal substantive due process jurisprudence.
202. See Zabel, supra n. 4, at 19-21.
203. See id. See Meyer v. St., 107 Neb. 657, 669, 187 N.W. 100, 104 (1922) (Letton, J., dissenting) (“It is patent, obvious, and a matter of common knowledge that this restriction was the result of crowd psychology: that it is a product of the passions engendered by the World War, which had not had time to cool”). However, the driving force behind the anti-foreign language laws may actually have been much more complex than mere anti-German prejudice. See Bybee, supra n. 201, at 892-894.
204. 104 Neb. 93, 175 N.W. 531 (1919) [hereinafter McKelvie I].
205. Id. at 94, 175 N.W. at 532.
206. Id. at 96, 175 N.W. at 533.
207. Id.
208. See id. at 100, 175 N.W. at 534.
209. See id.
210. See id. at 97, 175 N.W. at 533.
211. See id. at 104, 175 N.W. at 536.
212. See Bybee, supra n. 201, at 896 (“While the Nebraska Supreme Court rejected the churches' claim that the law interfered with the families' religious practices, it referred to no particular provision of the Nebraska Constitution or of the Fourteenth Amendment.”).
213. 107 Neb. 657, 187 N.W. 100 (1922), rev'd by 262 U.S. 390 (1923).
214. See id. at 659, 187 N.W. at 101.
215. See id.
216. See id. at 659-660, 187 N.W. at 101-102.
217. Id. at 661, 187 N.W. at 102.
218. Id.
219. Id.
220. See Bybee, supra n. 201, at 898.
221. See Meyer, 107 Neb. at 666, 187 N.W. at 103. See Bybee, supra n. 201, at 896 (“In response to the Court's decision in McKelvie I, some churches changed the hours of the afternoon session of school from 1 to 4 o'clock to 1:30 to 4 o'clock. This had the effect of freeing the half hour from 1 to 1:30 from formal school control.”).
222. Zabel, supra n. 4, at 146 (foonote omitted). Notably, the author of McKelvie I dissented in Meyer because of this change. See Meyer. 107 Neb. at 667, 187 N.W. at 1041-1005 (Letton. J., dissenting).
223. See Neb. Dist. of Evangelical Lutheran Synod v. McKelvie, 108 Neb. 448, 187 N.W. 927 (1922) [McKelvie II].
224. See Meyer v. Neb., 262 U.S. 390 (1923). The Nebraska Supreme Court, relying on the authority of this decision, reversed the conviction of Lutherans convicted of teaching foreign languages in Busboom v. St., 110 Neb. 629, 194 N.W. 734 (1923).
225. See Bybee, supra n. 201, at 891 (“the Supreme Court ignored the claims of infringement of religious liberty and resorted to the reasoning of substantive due process to recognize a parental right to direct children's education”).
226. There are three likely reasons why the Court did not address religious freedom. First, counsel for Meyer simply did not press a religious freedom claim before the United States Supreme Court as he had in front of the Nebraska Supreme Court. See Bybee, supra n. 201, at 900-901. Second, at the time it was not thought that the Free Exercise Clause applied to state conduct. As Bybee puts it:
[T]he Supreme Court had long held, and had reaffirmed shortly before Meyer, that the First Amendment did not apply to the slates, either on its own terms or based on the Fourteenth Amendment …. The Court had reaffirmed this position, both prior and subsequent to ratification of the Fourteenth Amendment.
Id. at 912-913.
Finally, even if the Free Exercise Clause had applied, it likely would not have offered much protection: “The few Free Exercise Clause cases decided by the Supreme Court—beginning with Reynolds v. United Slates—were remarkably hostile to religion.” Id. at 914 (footnote omitted).
227. See Meyer, 107 Neb. at 663, 187 N.W. at 102.
228. 98 U.S. 145 (1879).
229. Meyer, 107 Neb. at 664, 187 N.W. at 103. The Court cited Reynolds, along with several other cases, in support of this contention. See id. at 662, 187 N.W. at 102 (discussing how the statute comes within police power of the state); and id. at 663-664, 187 N.W. at 102-103 (“Whenever the actions of individuals, even though in pursuance of religious beliefs … are considered as not in harmony with the public welfare, then it is proper that those acts be curbed”).
230. See Dill v. Hamilton, 137 Neb. 723, 291 N.W. 62 (1940) (upholding a law prohibiting public séances); St. v. Hind, 143 Neb. 479, 10 N.W.2d 258 (1943) (upholding a regulation forbidding advertisements on motor vehicles, including advertisements for religious purposes); and Meyerkorth v. St., 173 Neb. 889, 115 N.W.2d 585 (1962) (upholding teacher certification requirements for religious schools). As we will see, although Meyerkorth would be the last official use of the “lawful police power” test in a religious freedom claim, many commentators suspect it was the de facto criterion in many subsequent cases.
231. See Sherbert v. Verner, 374 U.S. 398 (1963).
232. The closest case during this period was Goodman v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966), in which the Nebraska Supreme Court reversed a trial court's order barring a noncustodial parent “from rearing the children in his religious faith[.]” Id. at 85, 141 N.W.2d at 447. The Court may have been recognizing the new principle of Sherbert when it stated “We question whether even a noncustodial parent might legally be, or should be, enjoined from imparting religious instruction to his child in the absence of a showing of serious threat to the health or well-being of the child.” Id. at 89, N.W.2d at 449.
233. 207 Neb. 802, 301 N.W.2d 571 (1981).
234. See Shugrue, Richard E., An Approach to Mutual Respect: The Christian Schools Controversy, 18 Neb. L. Rev. 219 (1985)Google Scholar; Binder, Timothy J., Comment. Douglas v. Faith Baptist Church Under Constitutional Scrutiny, 61 Neb. L. Rev. 74 (1982)Google Scholar; Higgins, Michael J., State v. Faith Baptist Church: State Regulation of Religious Education, 15 Creighton L. Rev. 183 (1981)Google Scholar: and Tumbull, Kent, Christian School Controversy (12 13, 1982)Google Scholar (unpublished manuscript, on file at the University of Nebraska-Lincoln Schmidt Law Library). Because these articles cover the topic well, and because the case was decided on Federal rather than State constitutional grounds, I will not discuss it at length.
235. Faith Baptist, 207 Neb. at 805, 301 N.W.2d at 574.
236. See id. at 806, 301 N.W.2d at 574:
It is the defendants' belief that the public schools of today are overrun with an increase in crime, drug and alcohol addiction, teacher assaults, vandalism, and disrespect for authority and property. Additionally [they believe that] secular humanism is the basic philosophy of the public educational system, which is in direct opposition to the defendants' belief in biblical Christianity.
237. It is not clear whether the defendants raised or briefed a state Religious Freedom Provision claim. The majority opinion makes no mention of a state constitutional claim, but the concurring/dissenting opinion of Chief Justice Krivosha states, “[s]uch action would not, in my mind, constitute a violation of the religious clauses of either the United States Constitution or the Nebraska Constitution” See id. at 820, 301 N.W.2d at 581 (Krivosha. C.J., concurring and dissenting). Chief Justice Krivosha did not discuss the Nebraska Constitution's Religious Freedom Provision any further or attempt to distinguish it from the United States Constitution. One commentator has argued that the defendants should have raised such a claim, stating that “Faith Baptist is just one of many Nebraska decisions over the years which has ignored [the Religious Freedom Provision] of the Nebraska Constitution.” Turnbull, supra n. 234, at 27.
238. See e.g. Faith Baptist, 207 Neb. at 811, 301 N.W.2d at 577 (“the Yoder court did recognize the principle upon which our decision in Meyerkorth was based”); Shugrue, supra n. 234, at 240: and Binder, supra n. 234, at 89.
239. Faith Baptist, 207 Neb. at 817, 301 N.W.2d at 580.
240. Compare Shugrue, supra n. 234, at 242 (footnote omitted):
The problem with the decision in Faith Baptist Church is that it virtually ignores the modern doctrine handed down by the United States Supreme Court, murky though it may be. It ignores the least restrictive alternative admonition, takes for granted the existence of a compelling state interest in teacher certification, and in effect, assumes that the issue in Yoder was not the depth and centrality of the religious belief but the superannuation and isolation of the sect,
and Binder, supra n. 234, at 96 (“Douglas v. Faith Baptist Church[,] even if correct in its ultimate decision, constitutes a severe blow to religious freedom in Nebraska and is contrary to the free exercise test which has evolved through United States Supreme Court decisions”) (footnotes omitted) with Higgins, supra n. 234, at 195 (“In light of the uncertain state of the law, the Nebraska Supreme Court has made a reasonable effort to accommodate the free exercise rights of the Faith Baptist Church.”).
241. See St. ex rel. Douglas v. Calvary Acad., 217 Neb. 450, 348 N.W.2d 898 (1984) (per curiam); St. ex rel. Kandt v. N. Platte Baptist Church, 216 Neb. 684, 345 N.W.2d 19 (1984) (per curiam); St. ex rel. Douglas v. Morrow, 216 Neb. 317, 343 N.W.2d 903 (1984) (per curiam); and St. ex rel. Douglas v. Bigelow, 214 Neb. 464, 334 N.W.2d 444 (1983).
242. See Shugrue, supra n. 234, at 248, 252.
243. 653 F. Supp. 1510 (1987), affd., 844 F.2d 562 (8th Cir. 1988).
244. See id. at 1518.
245. See id.
246. See id. at 1519.
247. See id. at 1520.
248. See id. at 1521.
249. Id. at 1529.
250. Id.
251. See Rushton v. Neb. Pub. Power Dist., 844 F.2d 562 (8th Cir. 1988).
252. 234 Neb. 479, 452 N.W.2d 1 (1990) (per curiam).
253. Id. at 480-481, 452 N.W.2d at 2. The issue of when a trial court could properly order a parent to refrain from exposing a child to religious conduct has come up several times in Nebraska appellate courts, but usually not on constitutional grounds. See Peterson v. Peterson. 239 Neb. 113, 474 N.W.2d 862 (1991) (per curiam); Von Tench v. Von Tersch, 235 Neb. 263, 455 N.W.2d 130 (1990); Garrett v. Garrett, 3 Neb. App. 384, 527 N.W.2d 213 (1995); Rieker v. Rieker. 1999 WL 111309 (Neb. App. 1999) (unpublished); and Reid v. Girouard, 1996 WL 380685 (Neb. App. 1996) (unpublished).
254. At least, neither the majority nor concurring opinions make any mention of the Nebraska Constitution whatsoever. However, in a dissenting opinion. Justice Shanahan does make reference to the Religious Freedom Provision but cites to and discusses only federal law thereafter.
255. See id. at 485, 486, 452 N.W.2d at 5.
256. 494 U.S. 872 (1990). This Article assumes the reader has a basic understanding of United States Supreme Court Free Exercise Clause jurisprudence, and will therefore discuss the importance of Smith only in relation to the Nebraska Constitution. A good introduction into federal religious freedom jurisprudence is found in 4 Rotunda, Ronald D. & Nowak, John E., Treatise on Constitutional Law: Substance & Procedure § 21.6 (2d ed. 1992 & Supp. 1999)Google Scholar.
257. See e.g. Rubenstein, Cheryl, Note, Legislating Religious Liberty Locally: The Possibility of Compelling Conflicts, 19 Rev. Litig. 289, 294 (2000)Google Scholar (“Applying the reasoning of Smith, the Court changed the protection of free exercise dramatically”); Crane, supra n. 7, at 235 (“The Smith ruling sharply departed from a venerable line of Supreme Court precedent.”): Parsell, supra n. 34, at 753 (“Smith sparked much scholarly reaction, mostly critical of its rejection of a constitutionally compelled religious exemption and its abandonment of strict scrutiny analysis for a more deferential standard of review.”): and McCabe, supra n. 7, at 52 (“the Smith Court greatly narrowed First Amendment protection”).
258. Smith, 494 U.S. at 881.
259. See id. at 881. This is the so-called “hybrid exception.” See generally Esser, William L. IV, Religions Hybrids in the Loner Courts: Free Exercise Plus or Constitutional Smoke Screen, 74 Notre Dame L. Rev. 211 (1998)Google Scholar.
260. 42 U.S.C.A. § 2000bb et seq. (West 1994).
261. 249 Neb. 814, 545 N.W.2d 751 (1996).
262. Id. at 816, 545 N.W.2d at 754. Door-to-door witnessing was an important part of Teresa's faith as a Jehovah's Witness. See id. at 815, 545 N.W.2d at 753-754:
every other Sunday, approximately two Sundays a month, she participates in a 1-hour door-to-door visitation ministry in which she visits people at their homes, distributes literature, and discusses her faith with willing participants. The mother testified that if awarded custody, she would bring [her daughter] with her during these activities.
See Mead & Hill, supra n. 187, at 154-157 (discussing religious tenets of Jehovah's Witnesses).
263. Palmer, 249 Neb. at 815, 545 N.W.2d at 753-754.
264. Id. at 816, 545 N.W.2d at 754.
265. Id.
266. Id.
267. See id. at 814-815, 545 N.W.2d at 753.
268. See Brief for Appellant, Palmer v. Palmer, 249 Neb. 814, 545 N.W.2d 751 (1996) (No. S-94-279); and Brief for Amicus Curiae Watchtower Bible & Tract Society of New York, Inc., Palmer v. Palmer, 249 Neb. 814, 545 N.W.2d 751 (1996) (No. S-94-279). The appellee made no appearance in the case. See Palmer, 249 Neb. at 814, 545 N.W.2d at 753. Teresa's brief is interesting because it does not assign either federal or state freedom of religion as independent error, though it does discuss the Free Exercise Clause on several occasions. When doing so, it relies wholly upon the Yoder test and does not mention or cite to Smith or the RFRA. In contrast, the amicus brief of the Watchtower Bible & Tract Society (supporting Teresa's claim) does not cite to either the federal or state freedom of religion provisions, but does cite to the RFRA.
269. See e.g. Skinner v. Ogallala Pub. Sch. Dist., 262 Neb. 387, 631 N.W.2d 510 (2001) (holding that Court will not address claims not discussed in briefs); and Meyers v. Neb. Equal Opportunity Commn., 255 Neb. 156, 582 N.W.2d 362 (1998) (same).
270. Palmer, 249 Neb. at 817, 545 N.W.2d at 754-55 (citations omitted).
271. Id. at 818, 545 N.W.2d at 755.
272. See id. at 819-820, 545 N.W.2d at 755-756.
273. Id. at 820. 545 N.W.2d at 756 (emphasis added).
274. See supra n. 270 and accompanying text.
275. See supra n. 271 and accompanying text.
276. See supra n. 273 and accompanying text.
277. See City of Boerne v. Flores, 521 U.S. 507 (1997).
278. The Court has cited to Palmer several times in the past few years, but only for the rather mundane proposition that a trial courfs decision on custody is subject to an abuse of discretion standard. See e.g. Davidson v. Davidson, 254 Neb. 357, 576 N.W.2d 779 (1998); and Betz v. Betz. 254 Neb. 341, 575 N.W.2d 406 (1998). On behalf of ACLU Nebraska, I recently filed an amicus curiae brief with the Nebraska Supreme Court arguing that the Religious Freedom Provision provides greater protection than that of the Free Exercise Clause. However, the case was decided on statutory rather than constitutional grounds. See Brief for Amicus Curiae ACLU Nebraska Foundation at 8-9, City of Omaha v. Hum & Go, LC, 263 Neb. 724, 642 N.W.2d 154 (2002). The fact that Palmer applied strict scrutiny has been mentioned in passing by two other sources. See Rubenstein, supra n. 257, at 302 n. 71 (citing Palmer for the proposition that “State courts might frame their analysis differently but are consistently refusing to apply the Smith standard”); and Crane, supra n. 7, at 245 n. 72:
In Palmer v. Palmer, the Supreme Court of Nebraska applied the Sherbert strict scrutiny test in invalidating a restriction on a custody award that prohibited a Jehovah's Witness from involving her three-year-old daughter in religious activities. The court did not address the Smith or RFRA issues. Arguably, this situation may not have involved a facially neutral law, because the challenged state action singled out religious conduct for disfavorable treatment, a practice that even the Smith Court would have disallowed, (citations omitted).
279. This has been the approach of most state courts which have addressed the issue since Smith. See e.g. Crane, supra n. 7. at 245 (discussing “scrutiny mutiny” of several state courts refusing to apply Smith under their state constitutions); Rubenstein, supra n. 257. at 302-303 (“states have ignored the Court's new approach and have chosen to follow the old compelling interest standard, which they constructively approved and institutionalized by their previous adoption and application of the federal approach”) (footnotes omitted); and Cauthen, supra n. 15. at 1196 (stating that between 1970 and 1994. state courts expanded freedom of religion rights beyond that of the U.S. Supreme Court over half the time).
280. 65 Neb. 853, 91 N.W. 846 (1902), affd. on rehrg., 65 Neb. 853, 93 N.W. 169 (1903). There are a few important things to note about Freeman. First, the Nebraska Reports version of Freeman contains excerpts from the attorney's briefs and oral arguments, unlike the Northwest Reports version which contains only the Court's opinion. Second, Freeman contains some discussion of the No Sectarian Aid Provision in addition to discussion of the Religious Freedom Provision. The case is also ambiguous as to whether the Bible reading is invalid under the Religious Freedom Provision because it violates the child's freedom of religion (akin to a Free Exercise claim) or because the father is forced to pay for religious teaching he does not support (akin to an Establishment Clause claim). Because the United States Supreme Court has treated the issue as an Establishment Clause issue, see Engel v. Vitale, 370 U.S. 421 (1962). I deal with it in this Part of the Article as opposed to another Part. Another discussion of the Freeman decision can be found in Zabel, supra n. 4, at 106-111.
281. See Freeman, 65 Neb. at 869-870. 91 N.W. at 846. The plaintiff specifically alleged: [T]he [school] board permitted a teacher … to engage daily … in the presence of the pupils, in certain religious and sectarian exercises, consisting of the reading of passages of her own selection from a book commonly known as “King James' Version or Translation of the Bible.” and in singing certain religious and sectarian songs, and in offering prayer to (he Deity according to the customs and usages of the so-called “Orthodox Evangelical Churches” of this country, and in accordance with the belief and practices of such churches, the pupils joining in the singing of such sones or hymns.
Id.
282. See id.
283. Id.
284. Id. at 870-871, 91 N.W. at 847. Nebraska has had a long history of conflict between Catholics and Protestants. See supra nn. 104 & 136. and Freeman's attorneys made a point of alleging that the Bible read was the Protestant King James' version as opposed to the Catholic Douay version. See Freeman, 65 Neb. at 858, 867-868. An attorney for the school board argued that Freeman's lawsuit was an assault on “Christianity itself” and stated that “[t]he genius of our institutions was not created by infidels of the Freeman type, but by men who revered the Book as the common law of our faith[·]” Id. at 868.
285. See Abington v. Schempp, 374 U.S. 203 (1963).
286. Freeman, 65 Neb. at 872, 91 N.W. at 847.
287. See id. at 874, 91 N.W. at 848 (Sedgwick, J., concurring); and id. at 874-876, 91 N.W at 848-849 (Holcomb, J., concurring).
288. St. ex rel. Freeman v. Scheve, 65 Neb. 877, 877, 93 N.W. 169. 169 (1903). Although this opinion is normally considered as a rehearing of the former decision, it is also something in the nature of a review by a higher court. At the turn of the century, the Nebraska Legislature had created Commissioners to assist the Supreme Court in carrying out their duties. Thus, the first Freeman opinion was decided by two Justices and three Commissioners. It is not clear who took part in the second Freeman decision, but the opinion was written by the Chief Justice of the Nebraska Supreme Court.
289. Id. at 878, 93 N.W. at 170. In many ways this view is the opposite of the United States Supreme Court as expressed in Marsh v. Chambers, 463 U.S. 783 (1983).
290. Freeman, 65 Neb. at 878, 93 N.W. at 170.
291. Id. (emphasis added).
292. Id. at 880, 93 N.W. at 171.
293. See id.
Certainly the Iliad may be read in the schools without inculcating a belief in the Olympic divinities, and the Koran may be read without teaching the Moslem faith. Why may not the Bible also be read without indoctrinating children in the creed or dogma of any sect? Its contents are largely historical and moral. … Among the classics of our literature it stands pre-eminent.
294. The case referred to is St. v. Buswell, 40 Neb. 158 ( 1894), discussed in nn. 185-200.
295. 95 Neb. 527, 145 N.W. 999 (1914).
296. See id. at 528, 145 N.W. at 999.
297. See id.
298. See id. at 529, 145 N.W. at 999.
299. See id. at 531, 145 N.W. at 1000.
300. Id.
301. See Zabel, supra n. 4. at 116.
302. See Skag-Wav Dept. Stores. Inc. v. City of Omaha, 179 Neb. 707, 140 N.W.2d 28 (1966) (challenge to Sunday closing law); and St. v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000) (challenge to trial judge's practice of holding ex parte prayer session with jurors). Bjorklund implies, but does not clearly hold, that the same rules for standing under the Federal Establishment Clause apply under Ihe Nebraska Religious Freedom Provision.
303. St. ex rel. Freeman v. Scheven, Neb. 877, 879, 93 N.W. 169, 170 (1903).
304. See e.g. Doe v. Sinta Fe Indep. Sch. Dist., 530 U.S. 290 (2000) (prayers); Stone v. Graham, 449 U.S. 39 (1980) (Ten Commandments displays); and Abington v. Schempp, 374 U.S. 203 (1963) (Bible readings).
305. See Friesen, supra n. 11, § 4-1 (b) (“clauses that placed strict limits on funding and prohibitions on ‘preference’ to any one creed often reflected a desire to forestall political division and mistrust among the adherents of different faiths”).
306. Id. § 4-2. It should be noted that these provisions, so-called “Blaine Amendments.” have come under heavy fire recently for allegedly discriminating against religious schools. It's not clear whether the Nebraska No Sectarian Aid Clause is a Blaine Amendment since it prohibits aid to all nonpublic schools (both secular and religious), but at least one commentator includes the Nebraska provision on what he calls a “relatively expansive list” of Blaine Amendments. See Heytens, Toby J., Note, School Choice and State Constitutions, 86 Va. L. Rev. 117, 123 n. 32 (2000)CrossRefGoogle Scholar. See generally Vitteritti, Joseph P., Blaine's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 Harv. J.L. & Pub. Policy 657 (1998)Google Scholar.
307. See Neb. Const, art. VII, § 11.
308. 1866 Neb. Const. art. VII, § 1, repr. in Sheldon, supra n. 86. at 128.
309. Sheldon, supra n. 1, at 66. This proposal was referred to the Committee on Public Accounts and Expenditures and was not heard from again.
310. Id. at 185. This resolution was also referred to a committee.
311. Id. at 255.
312. See 1871 Neb. Const. art. VII, § 2, repr. in Sheldon, supra n. 86. at 132-133.
313. See Sheldon, supra n. 1, at 257-264.
314. See id. at 338.
315. Id. at 266.
316. See id. at 266.
317. See id. at 338.
318. Id.
319. Id.
320. Id. at 339 (emphasis added). The italicized portion of the quoted text is what the new amendment would have added to the previous language.
321. Id. at 339.
322. See id.
323. 1871 Neb. Const. an. VII, § 13. repr. in Sheldon, supra n. 86, at 132-133.
324. They did move the Provision slightly. See 1875 Neb. Const, art VII, § 11, repr. in Sheldon, supra n. 86, at 133.
325. See supra pp. 121-122.
326. Barnard, supra n. 133. at 68.
327. See id. at LX.
328. See supra pp. 121-122.
329. Barnard, supra n. 135, at 1457-1458 (emphasis added).
330. Id. at 2612.
331. Id. at 2629.
332. See id. at 2629-2630.
333. Id. at 2660.
334. See St. ex rel. Rogers v. Swanson, 192 Neb. 125, 128, 219 N.W.2d 726, 729 (1974); and Gaffney v. St. Dept. of Educ., 192 Neb. 358, 363, 220 N.W.2d 550, 553-554 (1974).
335. Barnard, supra n. 135, at 2661.
336. See id. at 2661.
337. Id. at 2662.
338. Id.
339. See id. at 2736.
340. Id. at 2847.
341. See St. ex rel. Public Sch. Disi. No. 6 v. Tavlor. 122 Neb. 454. 240 N.W. 573 (1932).
342. See id. at 455, 240 N.W. at 573.
343. See id. at 456, 240 N.W. at 574.
344. See id. at 456-457, 240 N.W. at 574.
345. See id. at 457, 240 N.W. at 574.
346. Id. at 458, 240 N.W. at 574.
347. See 1936 Neb. Atty. Gen. Annual Rpt. 189 cited in Zabel, supra n. 4.
348. See 1954 Neb. Atty. Gen. Annual Rpt. 262 cited in Zabel, id.
349. 188 Neb. 1, 195 N.W.2d 161 (1972).
350. See id.
351. See id. at 2, 195 N.W.2d at 163.
352. Id. at 2, 195 N.W.2d at 162.
353. See id. at 4, 195 N.W.2d at 164. This controversial holding is central to the current debate over the constitutionality of school vouchers.
354. Id. at 8, 195 N.W.2d at 166 (White, C.J., dissenting).
355. The measure passed by only 3/10 of one percent. See Clerk of the Legislature, supra n. 40, at 266.
356. Report of the Nebraska Constitutional Revision Commission 84 (1970)Google Scholar. See Talcott, Stanley M., Comment. Amending the Nebraska Constitution in the 1971 Legislature, 50 Neb. L. Rev. 676, 686 (1971)Google Scholar stating that amendment would:
permit the legislature to distribute federal grants in accordance with the terms of those grants. The current section eleven of Article VII prohibits acceptance to be used for sectarian purposes. In view of present federal programs designed to provide some financial aid to nonpublic education, removal of this limitation would be desirable, (footnote omitted).
357. See infra pp. 161-162. The only other change to the actual text took place in 1976 and allowed the Legislature to provide nonsectarian services for handicapped persons through the use of non-public educational institutions; voters at the same election rejected a proposal to allow the Legislature to “Provide loans or grants to students attending non-public post high school educational institutions as long as such financial aid is expressly limited to nonsectarian purposes.” See Cunningham v. Exon, 207 Neb. 513, 518, 300 N.W.2d 6, 9 (1980).
After these various amendments, the current No Sectarian Aid Provision reads as follows:
Notwithstanding any other provision in the Constitution, appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof; Provided, that the Legislature may provide that the state or any political subdivision thereof may contract with institutions not wholly owned or controlled by the state or any political subdivision to provide for educational or other services for the benefit of children under the age of twenty-one years who are handicapped, as that term is from time to time defined by the Legislature, if such services are nonsectarian in nature. All public schools shall be free of sectarian instruction.
The stale shall not accept money or property to be used for sectarian purposes; Provided. that the Legislature may provide that the state may receive money from the federal government and distribute it in accordance with the terms of any such federal grants, but no public funds of the state, any political subdivision, or any public corporation may be added thereto.
A religious test or qualification shall not be required of any teacher or student for admission or continuance in any school or institution supported in whole or in part by public funds or taxation.
Neb. Const, art. VII. § 11.
358. 192 Neb. 125, 219 N.W.2d 726 (1974).
359. See id. at 127, 219 N.W.2d at 728-729.
360. Id. at 129, 219 N.W.2d at 730.
361. Id. at 136, 219 N.W.2d at 733.
362. See id. at 139, 219 N.W.2d at 735.
363. Id. at 148-149, 219 N.W.2d at 739-740 (Clinton, J., dissenling) (emphasis added).
364. 192 Neb. 358, 220 N.W.2d 550 (1974).
365. See id. at 359, 220 N.W.2d at 552.
366. Id. at 362, 220 N.W.2d at 553.
367. Id. (emphasis added). Chief Justice White further stated:
S]urely no detached examination of our constitutional provision, its history, and declared purpose can come to any other conclusion than that the State of Nebraska attempted to avoid even opening the door to an involvement in the political, legislative, and judicial disputes involved in determining hairline and illusory distinctions of degree. The Constitution neither commands nor permits any financial aid by way of public appropriation. It does not limit it, it says that there shall be no aid at all.
Id. at 364, 220 N.W.2d at 554.
368. See id. at 375, 220 N.W.2d at 559 (“It is clear that the textbook loan act does not relieve the private school of any of its obligations. It receives no aid or benefit and obtains no more dollars than it would otherwise have.”).
369. Compare 1920 Neb. Const, art. VII, § 11 with Neb. Const, art. VII. § 11.
370. Shugrue, supra n. 4, at 897.
371. 209 Neb. 783, 311 N.W.2d 884 (1981).
372. See id. at 784, 311 N.W.2d at 886.
373. See id. at 785, 311 N.W.2d at 886.
374. Id. at 788, 311 N.W.2d at 888.
375. See id. at 791, 311 N.W.2d at 889.
376. See id. ex rel. Bouc v. Sch. Disi. of Lincoln, 211 Neb. 731, 737, 320 N.W.2d 472, 476 (1982) (“any benefit that may inure to the nonprofit private institution is merely incidental and certainly cannot be deemed an ‘ppropriation … to’ that institution. Under Lenstrom such an incidental benefit is insufficient to render [the act] violative of article VII. § 11”).
377. See St. ex rel. Creighion U. v. Smith, 217 Neb. 682, 690, 353 N.W.2d 267, 272 (1984) (stating that a “possible indirect benefit does not transform payments for contracted services into an appropriation of public funds proscribed by article VII, § 11”).
378. See Cunningham v. Lutjeharms, 231 Neb. 756. 759-760. 437 N.W.2d 806, 810 (1989) (citing Lensirom in support of constitutionality).
379. See Father Flanagan's Boys Home v. Dept. of Soc. Serv., 255 Neb. 303. 313-314, 583 N.W.2d 774, 781 (1998) (citing Lensirom in support of constitutionality).
380. See Barnard, supra n. 135, at 2629, 2677, 2678, 2680.
381. See id. at 2757 (emphasis added).
382. See e.g Caffney v. St. Dept. of Edic., 192 Neb. 358, 362, 220 N.W.2d 550, 553 (1974).
383. Report of the Nebraska Constitutional Convention 84 (1970) (emphasis added)Google Scholar. Compare Miewald & Longo, supra n. 12. at 127 (“In its rewriting of the section, the Constitutional Revision Commission appeared to be sure it was not changing the essence of the prohibition against state aid to non-public schools. All it did was to suggest the word ‘to,’ replace ‘in aid of’”) with Shugrue, supra n. 4, at 897 n. 104 (“Whether the intent of the Constitutional Revision Commission of 1970 was to allow wholesale changes to previous bans on aid to non-public schools is not clear from the Commission's formal report.”).
384. Nebraska Legislative Council, A Summary of Constitutional Amendments Proposed by the Nebraska Legislature 28 (1972) (emphasis added)Google Scholar.
385. See Cunningham v. Exon, 207 Neb. 513, 300 N.W.2d 6 (1980).
386. Riddell, William R., The Constitution of Nebraska, With an Occasional Comparison, 5 Neb. L. Bull. 147, 147 (1925)Google Scholar.
387. Brennan, supra n. 11, at 502.
388. Jarvis v. Jarvis, 584 N.W.2d 84, 92 (1998).
389. The Gunwall factors are quoted in their entirety supra p. 107.
390. See e.g. Friesen, supra n. 11, § 1-8 (discussing “How to Raise, Brief, and Argue State Constitutional Rights”).
391. See Llewellyn, Karl, The Bramble Bush 2 (Oceana Publications, Inc. ed., 1981)Google Scholar (“We have discovered that rules alone, mere forms of words, are worthless. We have learned that the concrete instance, the heaping up of concrete instances, the present, vital memory of a multitude of concrete instances, is necessary to make any general proposition, be it rule of law. or any other, mean anything at all”). In the Free Exercise realm, for example, although many scholars yearn for a return to “strict scrutiny” after Smith, “[c]ommentators generally share the view that strict scrutiny pre-Smith was anything but strict.” Crane, supra n. 7, at 252.
392. Riddell, supra n. 386, at 160.
393. Watkins, supra n. 108, at 81.