December 18, 2015 — An article by Pepperdine Law Professor Barry McDonald entitled “Democracy’s Religion: Religious Liberty in the Rehnquist Court and into the Roberts Court” will be published by the University of Illinois Law Review.
This Article examines the development of the U.S. Supreme Court’s free exercise and anti-establishment jurisprudence in the Rehnquist Court and into the Roberts Court. It demonstrates the profound impact that Chief Justice William H. Rehnquist had on that jurisprudence, effectively leading the Court to adopt his previously expressed view that both the Free Exercise and Establishment Clause had been construed too broadly in terms of restricting government action. Hence, the Rehnquist Court reversed years of precedent by holding that that religious exemptions from general secular laws were not required as a matter of free exercise, and it cut back severely on anti-establishment precedent requiring the government to remain strictly neutral in matters of religious aid or sponsorship. These developments have meant that religious accommodations now depend principally on statutory rights granted by legislatures, and that government is now free to act more boldly in supporting or sponsoring religious endeavors. In short, the role of religion in the nation’s public life will now be determined to a much greater extent by democratic choices than judicially-imposed mandates.
This Article also shows that the Roberts Court is extending these trends in significant ways. It will argue that construing religious exemptions as a matter of statutory intent rather than constitutional mandate has caused the Court, contrary to what might be expected, to read them much more expansively for both majority and minority faiths. This, in turn, will lead to a greater clash between free exercise and anti-discrimination rights, particularly in areas such as same-sex rights. But it will be contended that legislatures are better positioned to adjust these conflicts than judges. It will also demonstrate that Rehnquist Court precedents have emboldened the Roberts Court to further loosen restrictions on government support or sponsorship of religion. At the same time, however, that Court has prohibited government monitoring of which benefits flow to what religious groups — resulting in de facto preferences flowing to majoritarian religious sects at various geo-political levels. It will conclude that this trend would likely trouble the generally anti-sectarian generation that adopted the Establishment Clause, threatening a de facto reestablishment of religion.