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Cover title. ; Includes index. ; "April 1984." ; Mode of access: Internet.

The Supreme Court has been extremely puzzled about how to treat the distribution of public benefits when the pattern of distribution may cause individuals to alter their preferences in making constitutionally protected choices. When dealing with the freedom to choose an abortion, for example, the Court held that the Hyde Amendment was constitutional because the government did not interfere with freedom when all it did was offer money to make the option it preferred (childbirth) more attractive. In free speech cases, the Court has said that when the government opens up public property or offers financial incentives to speakers it must treat all options equally-it may not favor a particular subject or position. Last term, in Thomas v. Review Board, the Court held that when freedom of religion is at stake, the government has an independent obligation to fund the option which the individual finds more attractive. The case directed the state of Indiana to pay unemployment compensation to one who quit his job for religious reasons, even though the state paid nothing to those who quit for other personal reasons. The allocation of public funds has created similar problems with regard to other constitutional freedoms, such as travel, voting, and parental choices about their children's education. I think that all these cases present questions of equality rather than freedom, and that the free exercise and abortion decisions err on different sides of the correct principle. The proper approach is to say, as the Court has regarding freedom of speech, that the government need not fund protected choices, but if it does, it must do so in a neutral fashion. If that is correct, then the question Thomas poses is not whether Indiana had prohibited the freedom to exercise religious belief but whether the Court, by awarding benefits, violated the equality principle inherent in the Establishment Clause.

This article offers a measure of judicial 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, we examined an alternative thesis, namely that official legitimation by the judiciary of marginal religions is a function of their marginality. We compared the results of the universe of all reported state and federal judicial opinions from 1946 through 1956 and 1970 through 1980. We 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.

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.