History

Sources

U.S. Constitution

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" U.S. Const. amend. I, available at https://www.law.cornell.edu/constitution/first_amendment.

1884 Proposed Montana Constitution

"That the free exercise and enjoyment of the religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political rights, privileges, or capacity, on account of his opinions concerning religion, but the liberty of conscience hereby secured, shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, by bigamous or polygamous marriage, or otherwise, or justify practices inconsistent with the good order, peace, or safety of the State, or opposed to the civil authority thereof, or of the United States. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination, against his consent; nor shall any preference be given by law to any religious denomination or mode of worship." Mont. Const. art. I, § 4 (1884), available at https://archive.org/stream/montanaconstitutmontrich#page/5/mode/2up.

1889 Montana Constitution

"The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed, and no person shall be denied any civil or political right or privilege on account of his opinions concerning religion, but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, by bigamous or polygamous marriage, or otherwise, or justify practices inconsistent with the good order, peace, or safety of the State, or opposed to the civil authority thereof, or of the United States. No person shall be required to attend any place of worship or support any ministry, religious sect or denomination, against his consent; nor shall any preference be given by law to any religious denomination or mode of worship."Mont. Const. art. III § 4 (1889), available at https://archive.org/stream/constitutionofst00montrich#page/n7/mode/2up/.

The 1889 Montana Constitution was ratified to include the exact same language as the proposed 1884 Constitution, but with a slight grammatical restyling and omission of the word "capacity."

1972 Montana Constitution

"The state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."Mont. Const. art. II § 5 (1972), available at http://courts.mt.gov/portals/113/library/docs/72constit.pdf.

Montana's current freedom of religion provision was lifted from the Freedom of Religion Clause of the U.S. Constitution.

Drafting

Delegate Proposals

Two proposals were introduced addressing this section. One proposal by Delegate Dan Harrington sought to repeal the 1889 language to replace it with language from the U.S. Constitution prohibiting the Legislature, making it a new constitutional section, while also addressing aid to sectarian schools. Montana Constitutional Convention, Vol. I, Delegate Proposal at 189–90, available at http://courts.mt.gov/portals/113/library/mt_cons_convention/vol1.pdf.

Another proposal by Delegate Lyle Monroe sought to repeal the 1889 language to replace it with language from the U.S. Constitution prohibiting the State of Montana, while making it a new constitutional section, but did not address any other sections. Montana Constitutional Convention, Vol. I, Delegate Proposal at 315, available at http://courts.mt.gov/portals/113/library/mt_cons_convention/vol1.pdf.

Delegate Proposal No. 81 (Harrington): "The legislature shall make no law respecting the establishment of religion or prohibiting the free exercise thereof." Montana Constitutional Convention, Vol. I, Delegate Proposal at 189–90, available at http://courts.mt.gov/portals/113/library/mt_cons_convention/vol1.pdf.

Delegate Proposal No. 167 (Monroe): "The State of Montana shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. Montana Constitutional Convention, Vol. I, Delegate Proposal at 315, available at http://courts.mt.gov/portals/113/library/mt_cons_convention/vol1.pdf.

Committee Proposals

"Section 5. Freedom of Religion. The State of Montana shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Montana Constitutional Convention, Vol. II, Bill of Rights Committee Proposal at 620–21, available at http://courts.mt.gov/portals/113/library/mt_cons_convention/vol2.pdf.

The Bill of Rights Committee proposal placed the Freedom of Religion Clause under the Declaration of Rights and addressed the right as prohibiting the State of Montana.Id. The Committee noted that it was unanimously decided to substitute the concise wording of the freedom of religion clause of the First Amendment. Montana Constitutional Convention, Vol. II, Bill of Rights Committee Proposal Comments at 629, available at http://courts.mt.gov/portals/113/library/mt_cons_convention/vol2.pdf. The Committee additionally felt strong about removing the anti-Mormon bias reflected in the previous Freedom of Religion Clause.Id.

The Bill of Rights Committee noted in substituting the First Amendment's Freedom of Religion Clause: "Realizing the legal, social and political problems of the church-state area are exceedingly complex, it is not urged this provision will simplify their resolution. However, it will certainly not make the understanding of these compelling and sometimes paradoxical concerns more difficult."Id.

The Committee on Style and Drafting amended the language to match its current wording. Montana Constitutional Convention, Vol. II, Report of Committee on Style, Drafting at 957, 963, 969–70, 1038, available at http://courts.mt.gov/portals/113/library/mt_cons_convention/vol2.pdf.

Floor Debate

Delegate Lyle Monroe stated that the committee decided to substitute the concise wording of the Freedom of Religion Clause of the First Amendment to cut down on words and to remove language centered around banning polygamy to remove any anti-Mormon bias reflected in the previous wording. Delegate Monroe further noted that the Committee chose to adopt the language in the Federal Constitution given it's history, conciseness, adequacy, and to stave off any divisiveness from voters that might prevent adoption of the Constitution. 5 Verbatim Transcript 1646–47 (Mar. 7, 1972), available at http://courts.mt.gov/portals/113/library/mt_cons_convention/vol5.pdf.

Following the introduction of Delegate Monroe's proposal, no debate took place amongst the delegates. 5 Verbatim Transcript 1647 (Mar. 7, 1972), available at http://courts.mt.gov/portals/113/library/mt_cons_convention/vol5.pdf.

Delegate Monroe:

"Mr. Chairman, the committee decided unanimously to substitute the concise wording of the freedom of religion clause of the federal First Amendment. Much testimony was heard on this provision, most of it on the subject of public aid to church-related schools. The committee felt that this issue should be dealt with, as it was, by the Education and Public Lands Committee and that the provision incorporated into the declaration of rights should restrict itself to guaranteeing the free exercise of religion and prohibiting the establishment of any religion.

The committee felt especially strong about removing the anti-Mormon biases reflected in the previous wording of Article III, Section 4. This can be found on page 2 of our present Constitution, Section 4. Beyond that, the committee noted that since the religions which historically were persecuted were those alleged to violate or threaten the good order, peace and safety of the state, such passages were dubious of merit in a statement of religious liberty. Accordingly, both, of considerable length, were deleted.

What remains is the tradition-ridden guarantee of religious liberty adopted by the first U.S. Congress in 1789 as part of the federal Bill of Rights. We’ve, as it says, substituted the First Amendment clause in regard to religious liberty. It makes it a lot more simpler to understand, in my estimation. The present Section 4 of Article III in our Constitution is some 129 words, and in my estimation it is not very clear. Our committee-and members of the committee, as well as many people in the Convention, have received letters from people saying that they feel that is clear. I do not agree with that, and some members of my committee do not agree with that either. Some people have even went as far as saying they would not be able to vote for the Constitution-the adoption of the Constitution-if we altered Section 4 in the present Constitution in its present form. We feel that the federal amendment in regard to religious freedom is quite adequate and has served us for almost 200 years. I move for its adoption, Mr. President [Chairman]."Id.

Adoption

After a roll call vote of 96 delegates voting aye, and 0 delegates voting no (4 absent), Delegate Monroe's proposal was unanimously passed by the Convention on March 18, 1972. 7 Verbatim Transcript 2631–32, 2933–34 (Mar. 18, 1972), available at http://courts.mt.gov/portals/113/library/mt_cons_convention/vol7.pdf.

Ratification

Article II, § 5 was ratified by the the people of Montana as part of the Proposed 1972 constitution. The 1972 Voter's Pamphlet noted that Section 5: "Revises 1889 Constitution by using wording of the U.S. Constitution to guarantee free exercise of religion and prohibit the state from establishing a religion." See The Proposed 1972 Constitution for the State of Montana Official Text with Explanation (Voter’s Information Pamphlet), available at http://www.umt.edu/law/library/files/1972voterspamphlet.

Interpretation

Valley Christian School v. Montana High School School Association (2004)

In Valley Christian Sch. v. Montana High Sch. Ass'n,320 Mont. 81 (2004) the Court held that the bylaw of a private, voluntary association, which included public and private schools and concerned extracurricular activities, requiring member schools to hire only teachers with state certification was not a burden on religion.Id. at 85–86.

Thus, the bylaw did not violate free exercise rights of the religious school, which lost its membership in the association when it hired a teacher who was not certified because of a prior criminal conviction.Id. The Court noted that there was no indication that the school's internal standard of hiring teachers of faith precluded it from hiring certified teachers, and hiring of non-certified teachers was not mandated by religious belief.Id.

Big Sky Colony, Inc. v. Montana Department of Labor And Industry (2012)

In Big Sky Colony, Inc. v. Montana Dept. of Lab. and Indus.,368 Mont. 66 (2012) the Court held that workers' compensation statutes, including in the definition of “employer” religious corporations that voluntarily engage in commercial activities with nonmembers for remuneration, and including such organizations' members in the definition of “employees,” did not violate the Free Exercise Clause of the First Amendment.Id. at 72–74.

The Court noted that the statutes sought to include religious organizations that engage in commercial activities, but do not pay “wages” to their members for labor, within the generally applicable workers' compensation system.Id. at 73–74 Thus, the inclusion of religious organizations that engage voluntarily in commercial activities did not single out religious beliefs.Id. at 84.

Commentary

• Sharon L. O'Brien, Freedom of Religion in Indian Country, 56 Mont. L. Rev. 451 (1995).
• Edward T. LeClaire, The Slippery Definition of "Marital Status' and Religious Organizations' Free Reign to Discriminate A Casenote on Parker-Bigback v. St. Labre School, 64 Mont. L. Rev. 333 (2003).
• Paul Benjamin Linton, Religious Freedom Claims and Defenses Under State Constitutions, 7 U. St. Thomas J.L. & Pub. Pol'y 103, 155–56 (2013).
• Michael P. Dougherty, Montana's Constitutional Prohibition on Aid to Sectarian Schools: "Badge of Bigotry" or National Model for the Separation of Church and State?, 77 Mont. L. Rev. 41 (2016).