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U.S. Supreme Court Decision-Making and the Free Exercise Clause

Published online by Cambridge University Press:  05 August 2009

Joseph A. Ignagni
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Extract

The U.S. Supreme Court, at various times, has changed the constitutional tests it claimed to use in order to settle free exercise of religion disputes. These changes in official doctrine and the manner in which many cases have been decided have left the Supreme Court open to much criticism from legal scholars. This study differs substantially from previous work in this area. It uses a fact-attitudinal model to analyze the cases from the Warren, Burger, and Rehnquist Courts. Its findings indicate that these decisions are, generally, explainable and predictable.

Type
Research Article
Information
The Review of Politics , Volume 55 , Issue 3: Special Issue on Public Law , Summer 1993 , pp. 511 - 529
Copyright
Copyright © University of Notre Dame 1993

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References

I wish to thank Larry Slayton, Sandra Moore, Vernon James, Timothy Hagle, and Harold Spaeth for their various contributions. An earlier version of this article was presented at the American Political Science Association's 1991 annual meeting.

1. U.S. v. Ballard, 322 U.S. 78 (1944).

2. 98 U.S. 145 (1878).

3. 310 U.S. 296(1940).

4. Significant cases from this time period include: Murdock v. Commonwealth of pennsylvania, 319 U.S. 105 (1943); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Prince v. Massachusetts, 321 U.S. 158 (1944); and U.S. v. Ballard, 322 U.S. 78 (1944).

5. 366 U.S. 599 (1961).

6. 374 U.S. 398 (1963).

7. 406 U.S. 205 (1972).

8. This group of cases includes: U.S. v. Lee, 455 U.S. 252 (1982); Goldman v. Weinberger, 475 U.S. 503 (1986); O'Lone v. Shabazz, 482 U.S. 342 (1986); Lyng v. Northwest Indian Cemetery Protective Associations, 485 U.S. 439 (1988).

9. 110 S. Ct. 1595,108 L.Ed. 2d 876 (1990).

10. Tushnet, Mark, “The Constitution of Religion,” Review of Politics 50 (1988): 628.CrossRefGoogle Scholar

11. Gunther, Gerald, Constitutional Law (Westbury, NY: The Foundation Press, 1991), p. 1566.Google Scholar

12. Tribe, Laurence, American Constitutional Law (Mineola, NY: The Foundation Press, 1988), p. 1264.Google Scholar

13. Miller, Robert and Flowers, Ronald, Toward Benevolent Neutrality: Church, State, and the Supreme Court (Waco, TX: Baylor University Press, 1977), p. 59.Google Scholar

14. Mcconnell, Michael, “Free Exercise Revisionism and the Smith decision,” University of Chicago Law Review 57 (1990): 1109.CrossRefGoogle Scholar

15. Ibid., p. 1110.

16. Wald, Kenneth, Religion & Politics in the United States (New York: St. Martin Press, 1987), p. 135.Google Scholar

17. Ignagni, Joseph, “Explaining and Predicting Supreme Court Decision Making: The Establishment Clause Cases, 1970–1986” (Ph.D. dissertation, Michigan State University, 1990).Google Scholar

18. See Segal, Jeffrey, “Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962–1981,” American Political Science Review 78 (1984): 891–900CrossRefGoogle Scholar; Segal, Jeffrey, “Measuring Change on the Supreme Court: Examining Alternative Models,” American Journal of Political Science 29 (1985): 461–78CrossRefGoogle Scholar; Segal, Jeffrey, “Supreme Court Justices as Human Decision Makers: An Individual-Level Analysis of the Search and Seizure Cases,” Journal of Politics 48 (1986): 938–55.CrossRefGoogle Scholar

19. See, for example, Simon, Herbert, Models of Man (New York: John Wiley & Sons, 1957)Google Scholar; Simon, , “Theories of Decision Making in Economics,” American Economic Review 49 (1959): 253–83Google Scholar; Simon, , Models of Thought (New Haven: Yale University Press, 1979);Google ScholarSimon, , “Human Nature in Politics: The Dialogue of Psychology with Political Science,” American Political Science Review 79 (1985): 293–304CrossRefGoogle Scholar; and Steinbruner, John, The Cybernetic Theory of Decision (Princeton, NJ: Princeton University Press, 1974).Google Scholar

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24. See Ibid.for further details concerning this classification, p. 654.

25. From 1946–1956, nonmarginal groups won only one of the twenty-eight cases they were part of.

26. See also Shepherd, William, To Secure the Blessings of Liberty (New York: Crossroad Publishing Co., 1985)Google Scholar; and Abraham, Henry, The Judiciary: The Supreme Court in the Governmental Process (Boston: Allyn and Bacon, 1987).Google Scholar

27. This hypothesis is based least on Way and Burt's research, since their results were quite divided. This proposition is bolstered by arguments made by Sorauf, Frank, The Wall of Separation (Princeton, NJ: Princeton University Press, 1976)Google Scholar; Howard, A. E. Dick, in The Supreme Court on Church and State, ed. Alley, Robert (NY: Oxford University Press, 1988)Google Scholar; and McConnell, “Free Exercise Revisionism.”

28. No hypotheses are being presented concerning the other types of cases discussed by Way and Burt (e.g., prisoners' rights). This is because upon the reading and coding of the U.S. Supreme Court's rulings, there simply were very few or no decisions in a number of areas.

29. See, for example, Cohen, William and Kaplan, John, Constitutional Law (Mineola, NY: The Foundation Press, 1982)Google Scholar; Choper, Jesse, “The Religion Clauses of the First Amendment: Reconciling the Conflict,” University of Pittsburgh Law Review 41 (1986): 680Google Scholar; Gunther, Constitutional Law; and O'brien, David, Constitutional Law and Politics: Civil Rights and Civil Liberties (New York: W. W. Norton & Co., 1991).Google Scholar

30. See, for example, Kurland, Philip, “Of Church and State and the Supreme Court,” University of Chicago Law Review 29 (1961): 1–96CrossRefGoogle Scholar; Katz, Wilber, “Radiations from Church Tax Exemption,” in Church and State: The Supreme Court and the First Amendment, ed. Kurland, Philip (Chicago: University of Chicago Press, 1975)Google Scholar; and Cord, Robert, Separation of Church and State (New York: Lambeth Press, 1982).Google Scholar

31. Wald, , Religion & Politics, p. 126.Google Scholar

32. Baker, James W., James Madison on Religious Liberty (Buffalo, NY: Prometheus Books, 1985).Google Scholar

33. Bradley, Gerard, Church-State Relationships in America (New York: Green-wood Press, 1987).Google Scholar

34. Ignagni, “Explaining and Predicting Supreme Court Decision Making.”

35. It should be mentioned that while certain factors may play a role in both types of cases, they may have the opposite effect in each in terms of whether a law or regulation is constitutional or not (e.g., history and tradition). It should also be noted that a fourth related Establishment Clause variable, “LEVEL,” (concerning level of education) was coded for this project but was present in an insignificant number of cases, and a fifth variable, “US-USAMICUS,” will be discussed in the next section.

36. See Braiterman, Marvin and Kelley, Dean, “When Is Governmental Intervention Legitimate?” in Governmental Intervention in Religious Affairs, ed. Kelley, Dean (New York: The Pilgrim Press, 1982)Google Scholar; Shepherd, To Secure the Blessings of Liberty; and McConnell, “Free Exerdse Revisionism,” concerning general government services. See, for example, Nowak, John, Rotunda, Ronald, and Young, J. Nelson, Constitutional Law (St. Paul, MN: West Publishing Co., 1978)Google Scholar; Tribe, American Constitutional Law; and O'Brien, Constitutional Law and Politics, concerning neutrality. See, for example, Miller and Flowers, Toward Benevolent Neutrality; Cord, Separation of Church and State; and Howard, in The Supreme Court on Church and State, concerning history and tradition.

37. See, for example, Tanenhaus et al., “The Supreme Court's Certiorari: Jurisdiction”; Werdegar, Kathryn Mickle, “The Solicitor General and Administrative Due Process,” George Washington Law Review 36 (1967): 481–514Google Scholar; Caplan, Lincoln, The Tenth Justice: The Solicitor General and the Rule of Law (New York: Knopf, 1987)Google Scholar; and Segal, Jeffrey, “Amicus Curiae Briefs by the Solicitor General during the Warren and Burger Courts: A Research Note,” Western Political Quarterly 41 (1988): 135–44.CrossRefGoogle Scholar

38. U.S. Department of Justice, Annual Report of the Attorney General of the United States, 1984 (Washington: U.S. Government Printing Office, 1985).Google Scholar

39. While the early years of this Court produced decisions such as Yoder, over time it moved in the opposite direction.

40. Demerath, N. J. and Hammond, Philip, Religion in Social Context: Tradition and Transition (New York: Random House, 1969)Google Scholar; Kelley, Dean, Why Conservatwe Churches are Growing (New York: Harper & Row, 1972)Google Scholar; and Way and Burt, “Religious Marginaliry.”

41. See, for example, Mckelvey, Richard and Zavoina, William, “A Statistical Model for the Analysis of Ordinal Level Dependent Variables,” Journal of Mathematical Sociology 4 (1975): 103–120CrossRefGoogle Scholar; and Aldrich, John and Nelson, Forrest, Linear Probability, Logit, and Probit Models (Beverly Hills, CA: Sage, 1984).CrossRefGoogle Scholar

42. The three Court variables are dummy variables, and therefore one needs to be removed or suppressed in order for the analysis to be conducted. The procedure would break down if all the dummies were used together. This is due to the fact that once one knows the values for the first two dummy variables, the value of the third is known with certainty. The Warren Court was chosen because it was involved in the fewest number of cases. However, it should be noted that analysis was also done with WARREN included and REHNQUIST removed. The MLE for WARREN was positive as expected (2.12) and significant at the.05 level.

43. This is not altogether surprising since it appears that the Burger Court years were a mixed bag of decision-making. Once again, after some early victories by free exercise claimants, later decisions seemed to indicate a change in philosophy by the Court (which of course, could be the result of changes in personnel).

44. See note 42.