California Western Law Review
Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing.
In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect in reframing the constitutional view of the free exercise clause. In particular, the all-embracing interpretation of the establishment clause eventually was a catalyst used by a revisionist Supreme Court in 1990 to complete a revolution in free exercise jurisprudence.
However, that revolution returned the legal interpretation of the free exercise of religion to an older order of things, and the middle level of generality used to evaluate establishment clause claims neither fostered the higher level goals of the Court nor created a specific understanding for governmental officials to guide their conduct. In other words, the good intentions by which the Supreme Court, including Justice Brennan, decided religion clause cases for much of the period between 1956 and 1990 have led to suspicion, misunderstanding, and confusion, not enlightenment, tolerance, and respect.
So while Justice Brennan’s religion clause opinions were calculated to work a revolution in the sense of creating a new order, ultimately, this revolution sowed the seeds of a return to an older order. This revolution, which created Court-based protection for religious belief from legislative interference, appears destined to revolve into a situation in which religious belief is protected only through limited forms of legislative grace.
Michael S. Ariens, On the Road of Good Intentions: Justice Brennan and the Religion Clauses, 27 Cal. W. L. Rev. 311 (1991).