Abstract
Providing keen insight into the evolution of the Supreme Court’s free exercise clause jurisprudence, this Article picks up the behind-the-scenes story as the Court turned from Jensen v. Quaring to the case of Bowen v. Roy. The Article examines the Court’s decision making process in Bowen using unpublished correspondence and draft opinions from the papers of Justices Harry Blackmun and Lewis Powell. These materials show the justices’ concern with a possible slippery slope if religious believers were exempt from generally applicable laws and regulations. That common concern pulled the justices in different directions, fracturing the Court and leaving no majority position. The internal papers, however, show that a majority existed for one approach, but that concerns over justiciability prevented a majority from formally adopting that position. Consequently, Bowen left the Court’s Free Exercise Clause jurisprudence seemingly in disarray and left the Court open to take a new direction in the future.
The Article sets the stage with a brief overview of the Court’s modern Free Exercise Clause cases leading up to Bowen; reviews how the Court substituted Bowen for Jensen in the hope of forming a majority approach to accommodating large, complex government benefit programs to religious objections; and details the Court’s consideration and decision of Bowen. The Article concludes by drawing lessons that the Blackmun and Powell papers teach about Jensen, Bowen, and the Court’s Free Exercise Clause jurisprudence.
Recommended Citation
Paul E. McGreal,
The Making of the Supreme Court’s Free Exercise Clause Jurisprudence: Lessons from the Blackmun and Powell Papers in Bowen v. Roy,
34
S. Ill. U. L.J.
469
(2010).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol34/iss3/1