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Abstract

Social security litigation and health care litigation have played prominent roles in the development of the jurisprudence concerning the religious clauses of the U.S. Constitution. This note considers an interesting recent decision of the Montana Supreme Court that addressed the constitutionality of an extension of coverage under the Montana workers’ compensation code to colonies of the Hutterite (or Hutterian or Hutterische) Brethren Church. In Big Sky Colony v. Montana Department of Labor and Industry, the Montana Supreme Court, by a narrow majority, held the extension constitutional. The Court held that the extension of coverage did not breach the Free Exercise, Establishment, or Equal Protection Clauses of the U.S. Constitution.

Following the Montana Supreme Court’s decision, Big Sky Colony, Inc. (Big Sky Colony) unsuccessfully petitioned the U.S. Supreme Court for certiorari in this case. There is little doubt the Court was correct to refuse certiorari as the main argument advanced—that the analytical approach adopted by the Montana Supreme Court was incorrect—had not been made in detail to the Montana Supreme Court. Nonetheless the issues concerning how to determine whether a law is “neutral” and “generally applicable” are interesting and are discussed in this note. Although the petition was ultimately unsuccessful, it would suggest that unanswered questions remain both in relation to the analytical approach to be adopted and in terms of the compatibility of various exclusions from the workers’ compensations code and the Constitution. Part I of this note sets out the facts, while Parts II–V outline the ruling of the Montana Supreme Court relative to the Free Exercise Clause (Parts II and V), the Establishment Clause (Part III), and Equal Protection (Part IV). Part VI discusses the issues raised in the petition and Part VII concludes the note.

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