Document Type

Article

Publication Date

1-31-2010

Abstract

For more than a decade it seems the Court has been handing down decisions that have twisted the free exercise and establishment clauses in an unduly conservative direction Most notably Employment Division Department of Human Resources v Smith radically transformed free exercise doctrine while Zelman v SimmonsHarris the voucher case consolidated the Court's recent 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 This pessimistic assessment of religionclause jurisprudence is based on two hypotheses First that the Court for several decades starting in the 1940s was particularly receptive to the religionclause claims of minorities and second that the Rehnquist Court's doctrinal innovations will turn subsequent religionclause cases against minorities in an unprecedented fashion This Article challenges both these hypotheses If the postwar cases are examined from a political cultural and social perspective rather than from a doctrinal one they reveal a surprising level of judicial hostility toward religious outsiders To a great extent then the Rehnquist Court merely has maintained this antagonism and in all likelihood will continue to do so in the future To be sure the Rehnquist Court has transformed first amendment doctrine but these changes are unlikely to produce results substantially different from prior decisions

First Page

222

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