This Article explains why the Supreme Court has favored freeexpression claims over religiousfreedom claims under the pluralist democratic regime which took hold in the 1930s The developing theory of pluralist democracy readily justified an expansive concept of free expression An individual could not be a full and equal democratic participant unless she could freely gather information about political issues and unrestrainedly express her interests and values in the democratic arena Yet the theoretical relationship between pluralist democracy and religious freedom seemed more ambiguous While numerous theories could be offered to justify the protection of religious freedom no single theory enjoyed widespread support Partly for this reason the justices imbued free expression rather than religious freedom with the greater vitalityConstitutional politics further contributed to this preference for expression over religion As the pluralist democratic regime solidified the Protestant oldstock elite aided by the Protestantcontrolled Supreme Court constitutionalized their interests and values particularly in firstamendment freedoms so as to form a bulwark against the emergent political power of peripheral groups But through this constitutionalization of rights the justices differentiated free expression and religious freedom When a case highlighted the outsiderclaimant's difference from the mainstream as would happen often in religiousfreedom cases the justices were less likely to uphold the constitutional claim Meanwhile in those cases where the Court upheld the firstamendment claim the justices were most likely to view the claimants' practices as similar to mainstream practices and interests
Feldman, Stephen Matthew, "Theory and Politics of First-Amendment Protections: Why Does the Supreme Court Favor Free Expression Over Religious Freedom?" (2010). Faculty Articles. 97.