Rethinking the Supreme Court’s Hands-Off Approach to Questions of Religious Practice and Belief
In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief. While the Justices have articulated valid concerns concerning these cases, courts should not allow these concerns to deter them from making decisions vital to the effective adjudication of Free Exercise and Establishment Clause cases. In fact, it appears that as a result of the Court's increasing refusal to consider carefully the religious questions central to many cases, the Court often tends to group together religious claims and practices, regardless of the relative validity or importance of a particular practice within a religious system. This approach may lead to a number of disturbing results, some of which have already evidenced themselves in Supreme Court decisions in both Free Exercise and Establishment Clause cases. In Free Exercise Clause cases, grouping together all religious claims may require courts to accept and protect to the same degree all claims which appear to have a basis in religious belief. Courts may thus lose the ability to reject claims of relatively minor or even questionable religious significance. In such cases, courts may grant unnecessary and improper protections and exemptions to professed adherents, resulting in potential burdens on the government and society as a whole that could otherwise be avoided. Finally, the various dangers in both Free Exercise and Establishment Clause jurisprudence may be exacerbated by the fact that the Supreme Court has continuously broadened the range of the kinds of religious questions it refuses to consider. If courts continue to evade deciding these religious questions, their approach will perpetuate the unfortunate results that are already evident in a number of Supreme Court decisions. Levine concludes that the Supreme Court should reexamine the results of its Religion Clause jurisprudence, and adopt a willingness to consider more carefully questions of religious practice and belief.
25 Fordham Urb. L. J. 85 (1997-1998)