Rethinking the Supreme Court’s Hands-Off Approach to Questions of Religious Practice and Belief

Part I of this Article discusses Supreme Court cases prior to 1981, in which the Court first expressed its hands-off approach to deciding questions of religious practice and belief. This Part suggests that in these decisions, as a result of a proper concern for religious autonomy, the Court already began the process of expanding the principle of judicial non-interference, at the cost of sacrificing effective adjudication of important constitutional issues. Part II of this Article critiques the Court’s approach in Free Exercise Clause cases, identifying different problems that have arisen as a result of the Court’s approach. This Part argues that the Court’s decision in Employment Division v. Smith was, in part, a result of the Court’s increasing reluctance to decide questions involving religious interpretation. Part III identifies problems that may arise out of the Court’s approach in Establishment Clause cases. Finally, this Article concludes with the hope that the Court will acknowledge the need to reconsider its approach and adopt a new willingness to examine more closely questions relating to religious practice and belief.