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42 Syracuse L. Rev. 893 (1991)
Vigilance or Accommodation: The Changing Supreme Court and Religious Freedom

handle is hein.journals/syrlr42 and id is 905 raw text is: VIGILANCE OR ACCOMMODATION: THE
CHANGING SUPREME COURT AND
RELIGIOUS FREEDOM
Christopher E. Smitht
Linda Fryj
I. INTRODUCTION
Freedom of religion holds a prominent place in the Bill of
Rights. In fact, the first rights protected in the First Amendment are
those prohibiting the establishment of religion and guaranteeing the
free exercise of religion.' According to Justice Robert Jackson, [reli-
gious] freedom was first in the Bill of Rights because it was first in the
forefathers' minds; it was set forth in absolute terms, and its strength
is its rigidity.2 Since the 1940's, the Supreme Court has made deci-
sions defining and protecting religious freedom. In recent years, how-
ever, the Supreme Court's approach to issues involving freedom of
religion has evolved in new directions. Although less noticed by the
public than other issues, religious freedom has become a focal point
for disagreement among the Justices as the composition of the Court
has changed.
In the wake of the significant changes in the Supreme Court's
composition during the Reagan presidency,3 both scholars4 and the
t Associate Professor of Political Science, University of Akron. A.B., Harvard
University, 1980; M.Sc., University of Bristol (England), 1981; J.D., University of Ten-
nessee, 1984; Ph.D., University of Connecticut, 1988.
: Graduate Research Assistant, Department of Political Science, University of Ak-
ron. B.A., University of Akron, 1989; M.A. expected, University of Akron, 1992.
1. The relevant portion of the first amendment states: Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof.. . . U.S.
CONST. amend. I.
2. Everson v. Board of Educ., 330 U.S. 1, 26 (1947) (Jackson, J., dissenting).
3. Republican control of the White House coincided with the retirement of three
Justices during the 1980's: Potter Stewart, 1981; Warren Burger, 1986; and Lewis Pow-
ell, 1987. President Reagan was able to elevate William Rehnquist to Chief Justice and to
appoint three new Justices, Sandra Day O'Connor, Antonin Scalia, and Anthony Ken-
nedy. The 1990's dawned with President Bush's appointment of David Souter to replace
the retiring Justice William Brennan and the appointment of Clarence Thomas to replace

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