Washington University School of Law
Since 1986, when William H. Rehnquist was confirmed as the sixteenth Chief Justice of the United States, the Supreme Court has virtually rewritten the entire law regarding the First Amendment’s Religion Clauses. With respect to the Free Exercise Clause, the Court, in its 1990 Employment Division v. Smith decision, reversed years of jurisprudence and held that the First Amendment does not entitle religious believers to exemptions from neutral laws of general application. On the Establishment Clause side, the Court recently overturned a series of its earlier decisions on its way to creating a body of law quite amenable to the funding of religious organizations. As long as government money passes through the hands of private individuals who themselves choose how to spend that money from a set of options that does not encourage religious choices, the arrangement will be constitutional. With regard to legislative accommodations for religion, the Court has made clear that legislatures have significant leeway to grant exemptions to religious believers from general laws, subject only to a few important limitations. Most recently, in Locke v. Davey, the Court granted political decision-makers parallel authority to accommodate religious non-belief by holding that the state of Washington could refuse to fund theology majors from its general college scholarship program.
The Endorsement Court
Washington University Journal of Law & Policy
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1705