In a meta-analysis of the success of religious freedom cases before the Supreme Court, Amy Adamczyk, John Wybraniec, and Roger Finke found, simply, that these cases were not arbitrated equally (1). Their study concluded that between 1981 and 1990 40%, between 1990 and 1997 28%, and between 1997 and 2004 45% of the decisions favored the religious groups. Further, the different kinds of judicial tests (the precedents that jurors use to adjudicate cases) that the Court used also had a huge impact.
To put it plainly, it appears quite obvious that the Court arbitrates religious freedom cases inconsistently, particularly as the makeup of the Court changes. It makes sense that the understanding of religious liberty would be different between the times of Reynolds (1879) and Lemon (1971). But in my study of more modern court cases between 1940 and 1971 what I found particularly shocking was the pace of change. Two particular cases I think are worth highlighting here are Minersville School District v. Gobitis (1940) and Sherbert v. Verner (1963).
In Minersville School District v. Gobitis, the Court found 8-1 that schools could expel students for refusing to salute the flag. The Gobitis children, both Jehovah’s Witnesses, refused the salute on the grounds of their strong revulsion against idolatry. The Court, citing the important national security interests in creating a cohesive national identity, found these religious concerns secondary. But just three years later in 1943, this was overturned. Barnette v. Board of Education was decided 6-3, with only two judges from the original case having been replaced. The Barnette children, also Jehovah’s Witnesses, had seen a flag salute implemented in their school after the victory of the Minersville School Board and also had been expelled. Justice Frankfurter dismayed, spent most of his dissent in the Barnette case bemoaning the flip-flopping of the Court. Some academics argue this was due to changing political pressures placed by the Roosevelt administration and others to the changing tide of the post-WWII era and the revelations of Hitler`s religious repression. Either way, it demonstrates that the so-called “right to the religious expression” is often predicated on quickly swinging political leanings of the day.
Sherbet v. Verner also demonstrates the dissonance often present in the decisions of the Court. Sherbet, a Seventh-Day Adventist, sued the state of South Carolina after they denied her unemployment benefits. The State argued that since her faith did not allow her to work on Saturdays, she could not say “yes” to work in the local mills. The Court decided that the decision not to work on Saturdays did not make her an incapable worker, and thus she should be allowed access to benefits. This is despite the Court finding in Braunfeld v. Brown just a few years earlier in 1961 that banning Orthodox Jews from trading on Sundays did not impose a sufficient burden on their faith, even though they accepted it could have the consequence of forcing them to close business or trade on the Sabbath. Here, it is hard not to understand the frustration of Justices Harlan and Douglas writing in dissenting and concurring opinions, respectively, confused by their sense of their colleagues’ day-to-day flip-flopping. Ultimately, it seems the Court has a historically unclear view of the extent of the First Amendment`s protections.
Author: Millie Caughey