RELIGIOUS MARGINALITY AND THE FREE EXCERCISE CLAUSE

• Published in: The American political science review 1983-09, Vol.77 (3), p.652-665
• Main Authors: Way, F, Burt, B J
• Format: Article
• Language: English
• Subjects: CHURCH, SECT, RELIGIOUS GROUP; CONCERNED WITH FREEDOMS GRANTED IN THE FIRST AMENDMENT, U.S. CONSTITUTION; LAW AND LEGAL SYSTEMS; RELIGION (IN GENERAL)
• ISSN: 0003-0554

THIS ARTICLE OFFERS A MEASURE OF JUDICAL LEGITIMATION OF MARGINAL RELIGIOUS GROUPS IN LITIGATION INVOLVING THE FREE EXERCISE OF RELIGION CLAUSE OF THE FIRST AMENDMENT. THROUGHOUT THE GREATER PART OF HISTORY, MARGINAL RELIGIOUS FAITHS HAVE FOUND THE PATH TO ACCEPTANCE FILLED WITH LEGAL OBSTACLES. PFEFFER (1974) NOTED THAT LEGITIMATION OF MARGINAL GROUPS OCCURS EITHER WHEN THE SECULAR NORMS CHANGE OR WHEN SUCH GROUPS CHANGE THEIR RELIGIOUS DOCTRINES. THE PFEFFER THESIS IS GENERALLY CONSISTENT WITH THE SECT-CHURCH CONTINUUM DEFINED BY SOCIOLOGISTS OF RELIGION. IN THE RESEARCH REPORTED BELOW, THE AUTHORS EXAMINED AN ALTERNATIVE THEIS, NAMELY THAT OFFICIAL LEGITIMATION BY THE JUDICIARY OF MARGINIAL RELIGIONS IS A FUNCTION OF THEIR MARGINALITY. THEY COMPARED THE RESULTS OF THE UNIVERSE OF ALL REPORTED STATE AND FEDERAL JUDICIAL OPINIONS FROM 1946 THROUGH 1956 AND 1970 THROUGH 1980. THEY FOUND SUBSTANTIAL INCREASES IN THE PERCENTAGE OF SUCCESSFULLY LITIGATED FREE EXERCISE CLAIMS, AND FURTHERMORE, THAT SUCCESS IN LITIGATING THESE CLAIMS IS CLOSELY ASSOCIATED WITH THOSE FACTORS THAT DISTINGUISH THESE GROUPS AS MARGINAL.