Religious Minorities and the First Amendment: The History, the Doctrine, and the Future
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AMENDMENT: THE HISTORY, THE DOCTRINE, AND
THE FUTURE
Stephen M. Feldman
INTRODUCTION
Progressive or liberal constitutional scholars who focus on reli-
gious freedom have not been pleased with the Rehnquist Court.' For
more than a decade, it seems, the Court has been handing down de-
cisions that have twisted the Free Exercise and Establishment Clauses
in an unduly conservative direction. Most notably, Employment Divi-
sion v. Smith radically transformed free exercise doctrine, while Zel-
man v. Simmons-Harris,3 the voucher case, consolidated the Court's re-
cent Establishment Clause cases into a modified doctrinal approach.
As a consequence, First Amendment protections have apparently
shrunken to their smallest since World War II, especially for religious
minorities.4
Jerry W. Housel/Carl P. Arnold Distinguished Professor of Law and Adjunct Professor of
Political Science, University of Wyoming. I thank Richard Delgado, Barry Friedman, Sally
Gordon, John Jeffries, Mark Tushnet, Mo Bernstein, and Marty Belsky for their helpful com-
ments on earlier drafts.
SeeJesse H. Choper, The Rise and Decline of the Constitutional Protection of Religious Liberty, 70
NEB. L. REv. 651, 687 (1991) (arguing against the Court's rejection of a compelling interest
analysis for Free Exercise Clause challenges to general statutory prohibitions of certain con-
duct); Noah Feldman, From Liberty to Equality: The Transformation of the Establishment Clause, 90
CAL. L. REv. 673, 678-79 (2002) (arguing that the Court has changed its Establishment Clause
jurisprudence in adopting an equality, rather than liberty, rationale); Richard K. Sherwin, Rhe-
torical Pluralism and the Discourse Ideal: Countering Division of Employment v. Smith, A Parable of
Pagans, Politics, and Majoritarian Rule, 85 NW. U. L. REV. 388, 393 (1991) (criticizing the Court's
decision in Smith as ignoring its interpretive obligations by deferring to legislative/majoritarian
interest accommodation and mangement efficiency). For an attack on the Court's free exer-
cise jurisprudence from a more conservative political perspective, see Michael W. McConnell,
Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REv. 1109, 1153 (1990) (arguing
against the Smith Court's bare requirement of formal neutrality).
2 494 U.S. 872 (1990).
3 536 U.S. 639 (2002).
4 Justice Breyer writes: The Court, in effect, turns the clock back. It adopts, under the
name of 'neutrality,' an interpretation of the Establishment Clause that this Court rejected
more than halfa century ago. Id. at 728 (Breyer, J., dissenting).
Justice Souter writes:
[T]he reality is that in the matter of educational aid the Establishment Clause has largely
been read away. True, the majority has not approved vouchers for religious schools
alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get
before us, and in the cases that we may see, like these, the Establishment Clause is largely
silenced.](ViewImageLocal?handle=hein.journals/upjcl6&div=24&collection=&method=preview&ext=.png&size=3)
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Religious Minorities and the First Amendment: The History, the Doctrine, and the Future
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