Religion on Trial: How Supreme Court Trends Threaten Freedom of Conscience in America

Excerpt from introduction: Our argument is organized in three parts. First, we examine the origin of the U.S. Constitution and Bill of Rights. Since the regressive turn in current Supreme Court jurisprudence is usually carried out in the name of the Framers' "original intent," we look for what must have been the thinking of the Framers of the Constitution as they set up a tripartite government of checks and balances. We look especially at the role of the judicial branch and conclude that the Framers would applaud the expanded notion of religious liberty that emerged in twentieth-century jurisprudence. Second, we look at the record of the judicial system from 1789 through the 1930s. We learn that the narrow understanding of the First Amendment advocated by today's regressive justices does not reflect the thinking or intentions of the eighteenth-century Framers of the Constitution and Bill of Rights but rather reflects an understanding of church and state that emerged in the nineteenth century. Third, we look closely at the last half century of U.S. Supreme Court decisions on church-state issues, seeing them as a critical battleground for progressives who would further expand religious liberty and for regressives who would subject that liberty to majority rule. The resolution of these two issues in favor of an ever-expanding religious freedom-what Justice O'Connor calls "well-settled First Amendment jurisprudence"-is now under assault. Religious liberty or conscience is in jeopardy, threatened by those who in our view woefully misconstrue the course of religious freedom in America.