This Note examines several recent Supreme Court decisions considering the first amendment's free exercise clause to determine whether, collectively, the decisions are results of principled decision making. During the past two decades the Court has had four significant opportunities to deal with the free exercise clause. In all but one, the Court made important statements about the constitutional protection afforded the free exercise of religious belief. In each case the basic issue was the same: was interference with the exercise of religion unconstitutional when that interference resulted from the application of a general law that promoted a valid public policy and was nondiscriminatory on its face? In short, was unintended and incidental interference by an otherwise valid law nonetheless unconstitutional? Divergent decisions by the Court in these cases, marked by differences in their underlying rationales, suggest initially that principled decision making in this context has been lacking. This Note explores the results in the free exercise decisions, concluding that the Court has failed to establish a clear set of neutral principles in this area. The Note then proposes neutral principles that could enhance both the predictability and the acceptability of future free exercise decisions.
G. Michael McCrossin,
General Laws, Neutral Principles, and the Free Exercise Clause,
33 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol33/iss1/4