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7 Temp. Pol. & Civ. Rts. L. Rev. 1 (1997-1998)
The Conservative Supreme Court and the Demise of the Free Exercise of Religion

handle is hein.journals/tempcr7 and id is 9 raw text is: THE CONSERVATIVE SUPREME COURT AND THE DEMISE OF THE FREE EXERCISE OF RELIGION by JoN W. WHITEHEAD* INTRODUCTION A survey of the United States Supreme Court's Free Exercise Clause' decisions reveals that the Court has not maintained a consistent free exercise jurisprudence. This inconsistency is rooted in tension between the Court's occasional declarations that the free exercise of religion is supreme, occu- pying a preferred position among constitutional liberties,2 and two sepa- rate challenges to this notion emanating from ends of the political spectrum in apparent conflict. One challenge is from the right (or conservative), and the other is from the left (or liberal). The conservative challenge is more pressing, being embodied in the Court's free exercise jurisprudence of the last decade or so which has in large part been formed under the influence of President Ronald Reagan's appoin- tees to the Court.3 The liberal challenge, in its most significant aspect, is more theoretical and has not shaped the Court's free exercise jurisprudence in recent years as has the conservative view. The conservative challenge has two motivations: (1) deference to facially neutral statutes (especially criminal law statutes) of general applica- bility;4 and (2) an unwillingness to undertake the case-by-case analysis of all * President, The Rutherford Institute, Charlottesville, Virginia. B.A. 1969, J.D. 1974, Uni- versity of Arkansas. 1. The religion clauses of the First Amendment state: Congress shall make no law respect- ing an establishment of religion, or prohibiting the free exercise thereof; .... U.S. CONST. amend. I. 2. Two different understandings of this supremacy are expressed in two separate dissents to Jones v. City of Opelika, 316 U.S. 584 (1942), vacated, 319 U.S. 797 (1943). See infra notes 502, 507-10 and accompanying texts. According to the moderate understanding of this doctrine, free exercise occupies the same preferred position as other First Amendment rights. According to the stronger understanding, all First Amendment freedoms occupy a preferred position among constitutional liberties, but free exercise merits even greater protection than other such freedoms. 3. For an early discussion of the change this Court has wrought in free exercise jurispru- dence, see Stephen Pepper, Taking the Free Exercise Clause Seriously, 1986 B.Y.U. L. REv. 299 (1986). 4. Such deference motivated the Court's ruling in Employment Division, Oregon Depart- ment of Human Resources v. Smith, 494 U.S. 872 (1990). The Court held that the Free Exercise Clause permits states to prohibit Native American Church members' sacramental use of the hallucinogen peyote, and thus to deny unemployment benefits to those fired for such use. Jus- tice Scalia wrote for the Court that conscientious scruples do not exempt individuals from facially neutral general laws, for mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political

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