The Rehnquist Court and the Free Exercise of Religion

Abstract

Throughout much of the twentieth century the United States Supreme Court has promoted the free exercise of reli gion. Beginning with the Jehovah's Witness cases in the 1940s,1 the justices extended the protection of the First Amendment over many of the practices of religious and philosophical minori ties. Yet, in little more than four terms under Chief Justice William Rehnquist (1986-1991), the Supreme Court has restruc tured the boundaries of the Free Exercise Clause of the First Amendment. Although an absolute ban on coercion of religious belief remains in place,2 alteration of the Free Exercise Clause doctrine has taken place along two dimensions related to gov ernmental coercion of religious conduct. First, the Rehnquist Court established limitations on the ap plicability of strict scrutiny analysis in free exercise cases, a mode of analysis central to the treatment of religious conduct as a fundamental right. Second, the Rehnquist Court justices adopted a less general reading of the meaning of free exercise that effectively limited the scope of conduct of expression cov ered by the clause. Through both alterations in doctrine the jus tices made it more difficult for disadvantaged religious associations to lodge successful free exercise challenges to public policy.