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Free Exercise Clause: Research Problems

Research Problems

Problem One

Suppose a Maryland statute provides the following:

‘If a testator dies leaving behind lineal children or a spouse, and if such testator devises or bequeaths real or personal property to a minister, priest, rabbi, or preacher of the gospel, as such, or to a religious church, sect, order, or denomination, such devise or bequest may be voided in its entirety by one or more of the above specified persons who would receive any interest in the devise or bequest so avoided, unless such devise or bequest is made six months before the death of the testator.’

Stricken with a terminal illness, Jim revised his will to leave $250,000 to his local Protestant church before dying eight weeks later.  His oldest son asked this gift to be aside in accordance with the above statute.  The church now seeks to challenge the statute.  Does Jim’s church have a colorable Free Exercise claim?  If so, describe the research strategy of its attorney(s).  

(i) Here, there disputed government action is a Maryland state statute. Does the action violate federal or state constitutional law?  Does it violated federal or state statutory law?  Recall the possible federal regimes for Free Exercise claims: constitutionally, an act may violate the First Amendment (via the Fourteenth Amendment), reviewed under the Smith standard; in addition, two federal statutes may be relevant, RFRA or RLUIPA, which call for review under the Sherbert standard. Along with these federal considerations, there may be relevant state law. According to Bassett’s treatise, Religious Organizations and the Law, Maryland is own of the few states that have adopted the federal Smith standard to interpret its own constitution, and have not adopted any legislation further restricting state actions burdening religious exercise.

(ii) Using online resources, search Free Exercise claims brought in Maryland courts. See Archdiocese of Washington v. Moersen, 925 A.2d 659 (Md. 2007); Montrose Christian Sch. Corp. v. Walsh, 770 A.2d 111 (Md. 2001); Stover v. Prince George's County, 752 A.2d 686 (Md. Spec. App. 2000); Snyder v. Holy Cross Hosp., 352 A.2d 334 (Md. Spec. App. 1976).  Here, the question may be whether the law is generally applicable and neutral.  If the church can establish that the statute is in fact not neutral, the burden will swing to the government to demonstrate a compelling interest. 

(iii)  Using Shepardize or KeyCite features, insure that all case law is current.  There is a strong likelihood that even if the church does not prevail on the First Amendment claim, it would prevail on a Fourteenth Amendment equal protection claim.


Problem Two:

Suppose the Missouri legislature passed a law authorizing a scholarship for students who meet the following requirements:

(i)  Graduate from an in-state public or private high school;

(ii) either score a 28 on the ACT, or graduate in the top 10% of his or her graduating class;

(iii) have a family income that is no more than 150% of the federal poverty line;

(iv) complete and document 50 hours of charitable service by the time of graduation;

(v) enroll in an eligible in-state postsecondary institution; and

(vi) may not seek a degree in theology.

Tim, a high school senior, graduated from his local Catholic school and met the first four requirements.  However, he desires to enroll in a bachelor’s program at a nearby seminary with hopes of being a parish minister.  Does Tim have a colorable Free Exercise claim?  If so, describe the research strategy of his attorney(s).

(i) Analytically, the first question is whether the disputed government action was committed by a state or federal entity.  Here, the action is a restriction placed on recipients of the Missouri-funded scholarship seeking to study theology, so legal research will focus on Missouri law.  The litigant must find out whether the state of Missouri has adopted a statutory standard for reviewing Free Exercise claims that is more stringent than Smith.  (The Smith rule, remember, reviews Free Exercise claims under rational basis review as long as the government act is neutral toward religion and generally applicable.) Here, a helpful resource is Religious Organizations and the Law by Bassett, §§ 2:63-64, which surveys the Free Exercise doctrine of each state. According to the treatise, Missouri is one of the 15 states that have adopted a state version of RFRA, Mo. Rev. Stat. Ann. § 1.302 (West). Also consider the state constitution of Missouri, which contains a religious liberty provision. Art. I §5.

The question is whether this restriction violates § 1.302, Missouri’s RFRA statute, or Art. I, §§ 5-7 of the Missouri Constitution.  Additionally, a litigant will consider whether to bring federal claims under the First and/or Fourteenth Amendment.

(ii) Using the preferred online resources, search relevant legislative history and case law for the jurisdiction. See Coburn v. Mayer, 368 S.W.3d 320 (Mo. App. W. Dist. 2012), transfer denied (June 26, 2012); Paster v. Tussey, 512 S.W.2d 97 (Mo. 1974); Op.Atty.Gen. No. 79-84.  In this case, Art. 1, §5 has never been litigated on its merits in a Missouri court, so a litigant may turn to similar constitutional language from other states or draw from constitutional doctrine pre-§5.

(iii) Using Shepardize or KeyCite features, insure search results are current. While the state RFRA statute is helpful to Tim’s claim by providing for compelling interest review, he may run into difficulty in Art. I, §7 of the Missouri Constitution, which prohibits state funds from ‘directly or indirectly’ aiding a religious cause.  However, because the effects § 5 of the Article on state constitutional law are unknown, the outcome is difficult to predict.


Free Exercise litigation requires an understanding of historical trends and deft attention to current developments in the law.  The Affordable Care Act of 2010 promises to present new applications of the Religion Clause, and litigators should keep a watchful eye.  A number of helpful and efficient online tools should this aid in this process.  

Researchers attentive to costs will find that traditional forms of research, such as treatises and encyclopedia, provide inexpensive historical context, while publications current with recent legal developments are disproportionately expensive.  Litigators are well-advised to rely on conventional modes of research for historical context, and cheaper, less-expensive forms of research to keep up to date on emerging case law. This research guide is a helpful overview of the resources needed to efficiently maintain this balance.

The editor of this guide, Samuel Hill, is a second-year law student at the University of Missouri.  He completed this research guide as a component for an Advanced Legal Research course, taught by Professor Randy Diamond.