Religious Regulation and the Courts:

The Judiciary’s Changing Role in Protecting

Minority Religions from Majoritarian Rule

JOHN WYBRANIEC
ROGER FINKE

Following the 1990 Smith v. Employment Division of Oregon ruling on the limits of religious freedom, many
protested that the Supreme Court had opened the door for majoritarian oppression of minority rights. Using
data collected on 2,109 court cases on religion from 1981–1996 we document recent trends in court decisions
on religion and address questions posed by supply-side theory, legal scholars, and the sociology of law. We find
that religious sects and cults were more likely to be involved in court cases and more likely to receive unfavorable
rulings. Multivariate models confirm these finding and support the charges of legal scholars that the Smith decision
has decreased the rate of rulings favoring religious groups. Finally, we find that the Smith decision had both a
period effect and a case precedent effect.

INTRODUCTION

Throughout the 1990s there was a growing turmoil over interpreting the First Amendment’s
free exercise clause on religion. The 1990s opened with the U.S. Supreme Court’s controversial
ruling in Employment Division of Oregon v. Smith (494 U.S. 872, 1990)—a ruling that many
contended dispensed with the compelling state interest test previously used by courts to deter-
mine the limits of religious freedom.1 Following nearly four years of heated debate, and facing
immediate legal objections, Congress passed the Religious Freedom Restoration Act (RFRA) in
late November 1993—a legislative attempt to reinstate the compelling interest test. In June 1997,
however, the Supreme Court ruled that RFRA was unconstitutional and noted that the power to
interpret the Constitution remains with the judiciary.2 This, in turn, has prompted recent proposals
for a constitutional amendment that will grant more legal protection for religious freedoms.
The legal and legislative discourse over religious freedom has caught the attention of more
than politicians and religionists. The issue of religious freedom, or any state action that poten-
tially regulates religion, has become a centerpiece for new arguments being developed by social
scientists. Supply-side arguments explaining religious change argue that any form of religious
regulation, including court cases that deny sectarian religions religious expression, will suppress
religious competition by constraining the activities and opportunities of sectarian religions. Legal
scholars have charged that any form of state regulation on religion places an undue burden on
the minority religions. Likewise, the sociology of law has long pointed to the inverse relationship
between social power and the enforcement of state regulations. Each argument suggests that state
regulations will prevent the startup of new minority religions and will curtail the activities of
existing religious groups lacking power.
However, despite the frequent charges that recent court decisions are placing an undue burden
on minority religions, there is little systematic evidence to document that this is actually the
case. Legal scholars have cited individual (often high-profile) cases to support their charges, but
it is difficult to assess if these cases are typical of contemporary court actions. Likewise, social

John Wybraniec, 6480 East Pioneer, Roscommon, Michigan 48653. Email: wybraniec@i2k.net
Roger Finke, Department of Sociology, Pennsylvania State University, 211 Oswald Tower, University Park, Pennsylvania
16802. Email: rfinke@psu.edu

Journal for the Scientific Study of Religion 40:3 (2001) 427–444

428 JOURNAL FOR THE SCIENTIFIC STUDY OF RELIGION

scientists use case studies and historical examples to illustrate how court decisions allow religious
regulation to increase, but they fail to document the extent or severity of this regulation when
applied to contemporary court cases. In short, while there has been a great deal of speculation
concerning the recent trends in judicial conduct, little empirical evidence has been presented to
support these charges.
Using data from The Religious Freedom Reporter, a journal that documents court cases on
religion, this research examines 2,109 court decisions on religion from 1981 to 1996.3 Special
attention is given to the 1,307 cases involving the free exercise (religious freedom) clause of
the First Amendment.4 Here we will attempt to address the questions posed by legal scholars
and social scientists. Are the small and relatively powerless religious groups, groups that are
often in tension with the surrounding culture, more likely to be involved in court cases? Once
involved, are they more likely to receive an unfavorable ruling? And, did the Smith case or
the Religious Freedom Restoration Act change the level of court cases or the decisions handed
down?

LEGAL BATTLES OVER RELIGIOUS FREEDOM

When comparing religious free exercise litigation from 1946 through 1956 with the free
exercise litigation from 1970 through 1980, Frank Way and Barbara J. Burt (1983:652) concluded
that there were“substantial increases in the percentage of successfully litigated free exercise
claims” in the more recent time period. The beneficiaries, they found, were the “marginal“ religious
groups that were increasingly turning to the courts for protection. They suggested that the Supreme
Court decisions in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) had clarified the
guidelines for free exercise of religion and were favorable to supporting the “marginal” religions.
The Sherbert decision laid the groundwork for making free exercise decisions and the Wisconsin
decision affirmed that “only those interests of the highest order . . . can overbalance legitimate
claims to the free exercise of religion” (Alley 1988:423).
These conclusions were further supported by the writings of legal scholars. Speaking to the
American Economic Association in 1986, U.S. Court of Appeals Judge Richard A. Posner sum-
marized the “modern courts” interpretation of the First Amendment: “it forbids the government to
interfere with the free market . . . [of] religion” (Posner 1987:12). He explained that such rulings
benefit “fringe” groups because they force the majority to accommodate to the groups’ needs. A
few years later, in 1989, he and University of Chicago law professor Michael McConnell argued
that “the First Amendment can be understood as positing that the ‘market’—realm of private
choice—will reach the ‘best’ religious results; or, more accurately, that the government has no
authority to alter such results” (McConnell and Posner 1989:14).
But one year later, following the 1990 Smith v. Employment Division of Oregon decision,
McConnell (1990:1110) wrote that “all that has changed.” The free exercise clause, which was
largely uncontroversial for decades, was now at the center of debate (Alley 1988; Reichley 1985).
McConnell stated that the theoretical argument of the Smith case left “the court open to the charge
of abandoning its traditional role as protector of minority rights against majoritarian oppression”
(McConnell 1990:1129) and described it as “the biggest free-exercise change in doctrine ever”
(quoted in James E. Wood, Jr. 1992:674).
But what exactly happened? Essentially, Smith was a case in which the Employment Division
of Oregon denied unemployment benefits to Alfred Smith and Galen Black, two rehabilitation
counselors who had been fired for ingesting peyote during a Native American church ceremony.
The Court did not dispute the use of peyote as an ancient and genuine sacramental practice, but
nevertheless concluded that: “we cannot afford the luxury of deeming presumptively invalid . . .
every regulation of conduct that does not protect an interest of the highest order” (Employment
Division of Oregon, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 1990).
Legal scholars were quick to point out the Court’s apparent change of direction. Quoting from
RELIGIOUS REGULATION 429

decisions delivered only 14 months apart, Douglas Laycock (1990) highlights the magnitude of
the shift. Writing in 1989, Justice Scalia stated that:

In such cases as Sherbert v. Verner, Wisconsin v. Yoder, Thomas v. Review Bd. of Indiana Employment Security
Div., and Hobbie v. Unemployment Appeals Comm’n of Fla., we held that the free exercise clause of the First
Amendment requires religious beliefs to be accommodated by granting religion specific exemption from otherwise
applicable laws. (3)

But in Smith, Justice Scalia asserts:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law
prohibiting conduct that the State is free to regulate. (3)

The initial charge of Laycock and others was that prior to Smith the state was required
to have a “compelling interest” before denying religious freedoms, but that following Smith the
state could deny religious freedoms with laws that were formally neutral and generally applicable.
Justice Sandra Day O’Connor summed up the concerns of many when addressing the Bicentennial
Conference on the Religion Clauses in Philadelphia in 1991: “The Free Exercise Clause does not
mean very much if all a state has to do is make a law generally applicable in order to severely
burden a very central aspect of our citizens’ lives” (quoted in Wood, Jr. 1991:677).
The intense reactions were not isolated to the legal arena; public outcry over the decision was
almost immediate from many other sources. Within weeks of the decision, a disparate alliance,
including the American Civil Liberties Union, the American Jewish Congress, the Lutheran
Church-Missouri Synod, and the General Conference of Seventh-Day Adventists, signed a petition
protesting the ruling (cf. Wood, Jr. 1990). When the Supreme Court denied a rehearing of the
case, the coalition introduced the Religious Freedom Restoration Act (RFRA) in the House of
Representatives on July 26, 1990. After more than three years of debate, the act was signed into
law in November 1993.
The implications of Smith and RFRA faced ongoing legal scrutiny. In terms of Smith, several
cases were cited as examples of how the ruling seriously threatened minority religious expression.
The most prominent involved a Hmong family. After their son died from a seizure, a Rhode Island
coroner performed an autopsy without consulting the family and thus transgressed principles of the
Hmong family’s faith, namely, the mutilation of the body and removal of internal organs creates
an unfree spirit that must reenter a descendant of the family through reincarnation. The Hmong
family pursued legal action and the court in an initial ruling agreed that the family had a free
exercise claim to pursue. The court then recessed pending investigation of the suit. However, in an
act of unusual court procedure, the judge reconvened the case early to inform the family that under
the new precedent set by Smith, they did not have a claim for free exercise protection (cf. Flowers
1994). The judge determined that autopsies fit the guidelines of a general law of applicability as
established in Smith; hence it was a case in which the court reasoned that a compelling interest
test was unnecessary.
The RFRA was an act of Congress designed to limit the instance of such cases. How-
ever, RFRA itself was under investigation. Critics contended that it placed an undue burden
on the majority, and that Congress did not have the authority to overturn the Court’s ruling in
Smith. June 1997 brought this issue to center stage with the case of City of Boerne v. Flores, in
which city officials argued that RFRA had unconstitutionally burdened their governing capac-
ity. Specifically, RFRA had wrongfully expropriated power from state and local governments.
The Supreme Court agreed and overturned RFRA, and in the process sent a strong message
about who would be the final authority on free exercise cases. It was an action that many thought
would allow for increased regulation of minority religions. Consider Justice O’Connor’s dissent in
Smith:
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A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for
government neutrality if it unduly burdens the free exercise of religion . . . . The First Amendment was enacted
precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed
with hostility . . . the compelling interest test reflects the First Amendment’s mandate of preserving religious liberty
to the fullest extent possible in a pluralistic society. For the Court to deem this command a “luxury,” is to denigrate
the very purpose of a Bill of Rights. (Employment Division of Oregon, Department of Human Resources of Oregon
v. Smith, 494 U.S. 872, 1990)

Proponents charged that lifting RFRA would once again force minority religions to face the
legislative power of the majority.
Case studies by social scientists have recently drawn attention to the legislative power of the
majority and the potential regulatory actions of state agencies. Communal and family groups, such
as the Alamo Foundation and the Family of Love, have faced unfounded charges of child neglect
and abuse; tax laws have been used to identify and then arrest religious leaders such as Tony Alamo
and the Reverend Sun Myung Moon for tax evasion; the anti-cult movement set out to challenge
many new religious movements (Barker 1986; Richardson 1988, 1995, 1998, 1999; Robbins 1988;
Shupe and Bromley 1980). The literature has pointed to an increase in legislative acts at all levels
of government—local, state, and federal—which attempted and frequently succeeded in limiting
the activities of marginal religions (Bohn and Gutman 1989; Flinn 1987).
These are significant claims because legislative acts bring such battles over religious freedom
into the courts, and for minority religions, the judiciary is the final arena to which they can turn
for recourse. James T. Richardson (1998, 1999) contends that religious freedoms have always
been a matter of legal definition, but subtle changes in legal definitions over the last two decades
have had a profound impact on many smaller religions. He argues that it has become legally
more difficult for the Jehovah’s Witnesses to proselytize or for the Hare Krishnas to raise funds
through solicitation; communal groups are facing stricter zoning ordinances, especially at the
local level; and other religious groups face charges of exploitative employment policies, requiring
payment of minimum wages to voluntary members (Richardson 1998; Robbins 1988). Historically
and contemporaneously religious minorities in the United States have relied substantially on the
courts for protection (McLoughlin 1971; Moore 1986; Finke 1990; Williams 1995).
These examples suggest that court decisions can serve to curtail the actions and beliefs of
the less powerful and more socially deviant religions. Court decisions have the potential to make
a powerful impact on the U.S. religious economy.

EXPLAINING RELIGIOUS CHANGE

Recent developments in supply-side explanations of religious change assert that the most
significant changes in religion often derive from shifting supply, not shifting demand (Finke and
Stark 1992; Finke and Iannaccone 1993; Warner 1993; Stark and Iannaccone 1994; Finke 1997;
Iannaccone, Finke, and Stark 1997; Stark and Finke 2000). These theoretical arguments, frequently
referred to as the “new paradigm” for the study of religion, argue that religious economies (like
commercial economies) are sensitive to changes in market structure. The most significant market
change is regulation. The argument is simple. Regulation restricts competition by changing the
incentives and opportunities for religious producers (churches, preachers, revivalists, etc.) and
the viable options for religious consumers (church members) (Finke 1990).
When regulations do arise, the most immediate impact is felt by the sectarian faiths (i.e.,
religions in tension with their sociocultural environment).5 These regulations can come in two
forms, subsidy or suppression, with both forms placing the sectarian religions at a competitive
disadvantage. Subsidy, a subtle form of regulation, grants state support to one or a select few
religions. This places religions not subsidized by the state at a disadvantage because participation
in their organization is far more costly.6 Suppression, the more obvious form of regulation, and
the form of regulation we will address in this essay, tends to suppress the activities of all but the
RELIGIOUS REGULATION 431

state-supported religions. When the sectarian religions face suppression or are denied privileges
granted to other religions, their start-up and operating costs are sharply increased. Consider
the Colonial period in North America, where sects—and other non-Protestant religions—often
struggled for acceptance, itinerant revivalists were denied preaching opportunities, and members
often faced persecution (cf. Miller 1935; Mead 1963; Levy 1986; Flowers and Miller 1992). The
new forms of revivalism and itinerant preaching supported by the upstart sects, which would later
prove so effective in mobilizing people into the pew, were stifled. Members faced not only the
standard costs of membership, they also faced the costs of persecution. Like subsidy, suppression
sharply curtails the opportunities of the sectarian faiths.
The targeting of sectarian religions not condoned by the state is clearly evident even in
nations claiming religious freedom. For example, the French Parliament issued an official report
in 1995, Les Sectes en France (Cults in France), identifying 173 sects as having “dangerous
characteristics.” Included on the list were evangelical Protestants, Church of Scientology, and Soka
Gakkai.7 The European Parliament is currently considering an amendment to the Constitution
of the European Union permitting member states to discriminate against all religious groups
without local “constitutional” status, which means nearly all Protestant groups as well as all
non-Christian faiths (Dixon 1997). Even without this permission to discriminate, however, James
Beckford (1985:286) has explained that when groups lack constitutional protections, this “creates
conditions in which piecemeal, administrative sanctions can be applied behind a curtain of official
detachment.” Thus, the groups most likely to be targeted by the state are the sectarian groups
deemed deviant from the dominant culture.
But supply-side theorists are not alone in predicting that the powerless religions will be the
first to fall victim to state regulation. Along with the legal scholars reviewed earlier, the sociology
of law has long predicted that the application of regulations is inversely related to the power of
the offender (see, e.g., Black 1976, 1993). Though seldom applied to religion, the implications
are clear. Because the sectarian religions hold less power and are in tension with the surrounding
culture, they become the early targets for any increase in religious regulation.
Previous tests on the state’s regulation of religion have focused on dramatic shifts, when the
regulation of religion sharply increased or declined. Here we will look at the impact of court cases
that could allow for subtle increases in regulation. Returning to the contemporary United States,
we will offer a brief profile of court cases on religion in the United States since the early 1980s
and will attempt to answer some basic questions derived from theory and research.

1. Are sectarian religions (cults and sects) more likely to be involved in court cases?
2. Once involved, are sectarian religions more likely to receive unfavorable rulings?
3. Are religious groups or individuals, especially those with sectarian affiliations, more likely to
initiate legal action?

The theoretical arguments and the legal research reviewed suggest that each of these questions
will be answered in the affirmative. Sectarian religions are more likely to be involved in court
cases, are more likely to receive unfavorable rulings, and are more likely to initiate legal action.
Lacking the numerical size and public acceptance necessary for garnering legislative support,
these religions turn to the judiciary for protection (Jelen and Wilcox 1995). However, lacking the
support of the state, they are often the target of judicial action and receive less favorable rulings.
This research will also test for the effects of specific legislative and legal action. Although
evidence is often lacking, charges have been made that the Smith decision has led the courts to
tolerate more regulation of religion. Others have charged that the Religious Freedom Restoration
Act, though short lived, forced the courts to greatly expand the boundaries of religious freedom
and more frequently rule in favor of religious groups. This leads to two additional questions.

4. Did the rulings favoring religious groups’ free exercise of religion decrease following the Smith
decision?
432 JOURNAL FOR THE SCIENTIFIC STUDY OF RELIGION

5. Did the rulings favoring religious groups’ free exercise of religion increase following the
passage of the Religious Freedom Restoration Act?
We will test the impact that Smith and RFRA had on later court decisions in two ways. One is to
look to a period effect and the other is to examine the specific citing of Smith (or laws of general
applicability stemming from Smith) in court decisions. In the case of the former, the Smith period
of roughly 1990 to 1993 can be compared to the legal periods prior to it and following RFRA,
which supposedly returned the courts to a period prior to Smith. Likewise, tests can be conducted
to see if the Smith decision became a justification for denying religious freedom. For example,
did citing Smith in court decisions significantly decrease the likelihood of favorable decisions?
Similar procedures apply to RFRA. Following RFRA in 1993, this period should show a return to
favorable decision making by the courts, and secondly, the citing of RFRA should be positively
related to receiving a favorable decision.

CODING COURT CASES: THE RELIGIOUS FREEDOM REPORTER

Data to test these questions come from The Religious Freedom Reporter (the Reporter), a
journal published monthly by the Church-State Resource Center of the Norman Adrian Wiggins
School of Law, Campbell University. The journal dates back to January 1981 and, as stated in
the introductory preface to each issue, “seeks to provide comprehensive coverage of pending and
decided cases, new legislation and regulations, law review articles and other resources related to
religious freedom.” The Reporter is an important find because coverage includes all levels of the
judiciary and not simply Supreme Court decisions, which tend to receive the most attention in
the media. Cases are collected and indexed according to two methods.8 The primary method is
through key word searches of professional law databases such as Westlaw and LEXIS, which is
a standard used by the legal profession generally. Secondly, the journal accepts cases submitted
from outside contributors, which it then cross-checks with individual database services to remove
duplicates.9 The obvious strength of the Reporter is that it offers social scientists a relatively large
and accessible collection of court cases involving religious freedom. Moreover, with each case
there is a description of the proceedings, the decision rendered by the court, a listing according
to the state where the case appeared, the level of the court, and, finally, a categorization by the
type of case—constitutional, free exercise, establishment, tax law, family law, education, public
institutions, and so forth.
An initial concern was to establish how comprehensive the collection of cases was in relation
to the unknown population of court cases on religion during the period from 1981 to early 1997.
To address this concern, a preliminary test was conducted on Westlaw to see if the number
of cases returned by our search came close to that of the Reporter. Using various key words
on the Religious Freedom Restoration Act (RFRA) indicated that the Reporter was far more
complete. As of late 1996, the time of the Westlaw search, we uncovered a total of 166 cases
citing RFRA since 1993. Codings from the Reporter turned up a total of 337 cases—not including
appellate decisions that might introduce duplicates of the same case. This finding provided us with
considerable confidence that the Reporter was indeed comprehensive. A second concern, and one
that has proven more difficult, is that in a small number of cases it is not possible to identify a
specific religious affiliation of the group or individual involved in the case. In 18 percent of the
cases an identifiable religion was impossible, and in another 16 percent only a general category of
Christian could be applied. However, based on our work with coding the cases we are confident
that the Reporter still provides the best available source for data to test our outlined research
questions.
Given that the primary purpose of the Reporter is coverage of court cases at all levels of
the judiciary, a content analysis on the cases reported in this journal served as a source to test
the recent trends and impact of court actions. For the analyses presented here, over 3,000 cases
were read for coding, and of these 2,109 were specifically coded for analysis. Two initial criteria
RELIGIOUS REGULATION 433

were used in coding cases for the sample. The most obvious is that it had to be a decided case.
Secondly, only those cases that brought a First Amendment claim were coded for analysis.10
Coded First Amendment claims took the form of three classifications: cases that included solely
a free exercise claim, those that brought only an establishment clause claim, and those that cited
both a free exercise and establishment claim.11 Once these initial criteria were passed, other
relevant variables were included so as to test the claims posed by literature and theory.
Two important variables included the decision or ruling in the case, and the religious affiliation
of the group or individual involved in the case. In the case of the former, each case was given
a code for whether the decision was favorable or unfavorable for the religious classification
involved.12 This allows for tracking trends in the outcome of court cases across time and for
comparing favorable versus unfavorable rulings by religious affiliation. The second variable,
religious affiliation, was initially coded by the name of the specific religious group and was later
collapsed according to whether the group (or the individual’s affiliation) was a church, sect, cult,
or another non-Christian tradition.13 Borrowing on the work of Stark and Bainbridge (1985),
we define sects and cults as religious movements that are in a high state of tension with their
sociocultural environments. Sects represent high-tension schismatic movements breaking away
from existing religions and cults represent high-tension new religions. By tension, we are referring
to the degree of separation, antagonism, and distinctiveness the religious group holds with the
environment. Our final categories closely resembled those of past research on sects and churches
(Roof and McKinney 1987; Iannaccone 1988). Finally, other important exogenous variables were
included, such as the level of the court, the state where the decision was made, whether Smith,
RFRA, or other decisions were used in the case, and if the court applied the compelling state
interest test. Each is described in more detail during the analyses.

RESULTS

Initial results support the arguments of supply-side theories and previous research, namely,
that sectarian religions depend upon the courts for protection. Table 1 shows the percentage of
court cases on religion by religious affiliation with the last column displaying the total percentage
of U.S. membership represented by the religious affiliation. Generally, the results indicate that
religions in tension with society are more likely to be involved with the judiciary. For example,
while Protestant sects make up less than 15 percent of the total U.S. church membership, they were
involved in almost 27 percent of free exercise claims. The results for new religious movements
(cults) are even more striking. Representing only 1 percent of church membership, they are
involved in more than 16 percent of the free exercise court cases. The Jewish, Muslim, and Native
American religions show a similar pattern. These affiliations make up less than 3 percent of total
membership, but they are involved in 18 percent of the free exercise cases on religion. When
combined, these groups make up only about 18 percent of the church membership in the United
States, but together they account for nearly 62 percent of the free exercise cases coming to the
courts, and nearly one-half of all court cases on religion. The reverse holds when one considers
mainline Protestants. Mainline churches represent 21 percent of U.S. church membership but
are involved in only approximately 4 percent of cases on religion, including free exercise cases.
Catholics are also underrepresented in the courts. Making up over 38 percent of the nation’s
church membership but representing less than 8 percent of the free exercise cases. The anomaly
in Table 1 involves the Baptists. Our coding revealed that most were sectarian in beliefs, yet they
were not as frequently involved in court cases as the other higher tension affiliations.
In addition to providing a general summary of which religions were most likely to be in-
volved in court cases on religion, we also tested the question of who was more likely to prevail
in court decisions. Table 2 confirms the claims that higher tension religions are less likely to
receive a favorable decision. Consider that while sects and cults make up a larger portion of the
cases coming before the courts (Table 1), their rate for receiving a favorable ruling is relatively
434 JOURNAL FOR THE SCIENTIFIC STUDY OF RELIGION

TABLE 1
PERCENTAGE OF COURT CASES COMPARED TO TOTAL PERCENTAGE OF U.S.
CHURCH MEMBERSHIP BY RELIGIOUS AFFILIATION1

Percentage of Percentage of Court Percentage of

Religious Affiliation of Court Cases on Cases on Free U.S. Church
Group or Individual Religion Exercise Membership2
New Religions (Cults) 15.3 16.5 1.0
Protestant Sects 20.6 26.8 14.7
Native American Religions 3.0 5.0 0.003
Muslim 4.5 7.3 0.5
Jewish 5.7 6.2 2.2
Baptist (Total)3 22.5
Sectarian 4.1 3.3 11.6
Mainline 11.0
Catholic (Including Orders) 8.5 7.5 38.4
Mainline Protestant 3.9 3.6 21.0
Religion Unidentified/Unclear4 18.4 17.6 —
Christian (General)5 16.0 6.3 86.2
Number of Cases 2102 1226 157,078,0006
1
Table does not include Atheists (N = 7). We also controlled for a four-area region of Northeast, Midwest,
South, and West. The percentages were not very different from the general summary presented here. That is,
the percentages were not likely to differ more than a few percentage points. The differences were consistent
with what is known in the literature about the regional differences in religion. For example, Catholic and
Jewish religions had a slightly higher percentage in the Northeast, while sects and cults were slightly higher
in the West. These religions tend to have higher numbers in these regions as well.
2
All estimates are from a combination of Kosmin and Lachman’s One Nation Under God (1993) and Year-
book of American and Canadian Churches, 1997, edited by Kenneth Bedell.
3
The Baptist category has not been easy to classify in this sample, but most appeared to be nondenomi-
national sectarian groups. For example, many of the coded cases included descriptions of the religion as
fundamentalist, scripturalist, or strict interpretivist. Because of this, we have classified them here as largely
sectarian Baptist. However, it could be that some were members of the more mainline associations such as
Southern or American Baptist Church of USA.
4
In 387 cases (18.4 percent), a religious identification either remained unclear or could not be identified.
5
The general Christian category (N = 336) includes those cases in which a Christian religion was present
but a specific affiliation/denomination could not be identified.
6
This estimate excludes religious nones, athiests, humanists, and agnostics. With such figures included,
Kosmin and Lachman have a figure of 171,409,000.

low, approximately 37 percent. In contrast, mainline Protestants are the only affiliation to rise
above 50 percent favorable decisions, holding at almost 70 percent for all decisions and almost
65 percent for free exercise claims. Other interesting findings include those for the Jewish and
Native American religions. Still below 50 percent, they are higher than sects and cults. The finding
counters the claims of recent work suggesting that Native Americans have not been successful
in receiving protection from the courts (cf. Carter 1993).14 The Baptists and Catholics, groups
that overlap the church and sect divide, show the most intriguing rates in the table. Like mainline
Protestants they have a low rate of cases in the courts, but like sects and cults they have a low
rate of favorable decisions once in the courtroom. For Baptists, this finding supports our initial
observation that the Baptists in the sample are more sectarian than mainline in orientation. For
Catholics, however, we were unable to judge if these litigating groups represented the higher
RELIGIOUS REGULATION 435

TABLE 2
PERCENTAGE FAVORABLE COURT RULINGS BY RELIGIOUS AFFILIATION1

Percentage of Favorable Rulings for the Religious

Group/Individual
Religious Affiliation All Court Cases on Religion Free Exercise Claims
Mainline Protestant 68.3 63.6
Native American 46.9 45.9
Jewish 45.0 47.4
Catholic (Including Orders) 39.9 35.9
New Religions (Cults) 36.8 37.1
Protestant Sects 36.7 35.4
Muslim 33.0 32.2
Baptist 27.6 22.5
Religion Unidentified/Unclear 2 41.9 31.9
Christian (General)3 46.4 40.3
Number of Cases 2102 1226
1
Table does not include Atheists (N = 7).
2
See note 4, Table 1.
3
See note 5, Table 1.

tension segments of the church. Initially, we thought that this finding might, in part, be explained
by the location of the cases, with Baptists and Catholics each dominating selected areas of the na-
tion, but when we controlled for region, the differences were minor, inconsistent, and statistically
insignificant.
Finally, as expected, we found that religions seek protection from the courts when it comes to
guarding their own religious freedoms, but are the targets of legal action when their activities are
perceived to threaten the separation of church and state. For 76 percent of the cases on religious
freedom (the free exercise clause), it was a religious group or individual who initiated the action.
The reverse is true for establishment cases, where 68 percent of the cases are initiated by secular
litigants.
While the above statistics reveal that sectarian religions are more likely to appeal to the courts
for protection of their religious freedoms, despite receiving fewer favorable rulings than mainline
religions, the statistics do not explore the consequences of the Smith decision or the Religious
Freedom Restoration Act (RFRA). What about the critical Smith decision? As reviewed earlier,
many charge that the Smith decision reduced protection of religious freedoms by eliminating the
state’s compelling interest test. Figure 1 shows the breakdown for the percentage of cases citing

TABLE 3
TYPE OF LEGAL CASE BY WHO INITIATED LEGAL ACTION

Type of Case
Free Exercise and
Case Initiated by: Free Exercise Establishment Establishment
Religious Group/Individual 76.0% 24.9% 65.6%
Secular Group/Individual 22.3% 68.2% 32.0%
Unclear 1.8% 6.8% 2.4%
Number of Cases 1303 469 337
436 JOURNAL FOR THE SCIENTIFIC STUDY OF RELIGION

FIGURE 1
PERCENTAGE OF CASES CITING A COMPELLING INTEREST TEST BY LEGAL
PERIOD, CONTROLLING FOR LEVEL OF THE COURT

a compelling interest test for various critical legal periods covering 1981 to 1996.15 The figure is
further broken into categories to show the effect at various levels of the court. Whether considering
all levels of the judiciary or only those for state and federal claims, the percentage of cases citing
a compelling interest test declined during the Smith period and then rose again during the RFRA
period. This evidence lends credence to claims by legal scholars that Smith would have an impact
on the application of the traditional test. During the Smith period the compelling interest test was
no longer the accepted standard by which favorable and unfavorable decisions were justified. A
second conclusion is that a change in court procedures—especially at the highest level—can have
an impact on future and lower court decisions. The impact of the Smith decision was immediate
and striking.
A reduction of the compelling interest test does not by itself, however, answer the question of
whether Smith had an impact on contemporary religious freedom cases. Table 4 is the first step in
testing for the effects of Smith on later court decisions. The dependent variable is a dichotomous
measure of whether the court handed down a favorable or unfavorable decision for the religious
group or individual involved in the case (0 for an unfavorable decision; 1 for a favorable decision).
In this table, the models test for the impact of specific legal periods and for the general effect of
religious affiliation on court decisions. The legal periods are presented so that both the pre-Smith
and RFRA periods are compared to the legal period constituting Smith.16 Here we are trying to
answer question 4: Did the rulings favoring religious groups’ free exercise of religion decrease
following the Smith decision?
The results for Model 1 in Table 4 indicate that the Smith decision did have a significant impact
on free exercise decisions from 1990 to 1993. When compared to the Smith period, the periods
prior to Smith and following RFRA show a positive relationship to court decisions. Indeed, the
odds of a favorable decision for religious freedom cases outside of the Smith period were almost
two to one for cases prior to Smith and were over two to one for the RFRA period following
Smith. Further, the relationship holds even when controlling for other relevant variables such as
the compelling interest test, the citing of other cases, the level of the court, and region of country.
However, supply-side theory and recent research suggest that the effects of these changes might
vary across religious groups, with those religions holding the highest tension with surrounding
culture bearing the brunt of these changes.
RELIGIOUS REGULATION 437

TABLE 4
LOGISTIC COEFFICIENTS OF THE LEGAL PERIODS OF SMITH AND RFRA
FOR PREDICTING FAVORABLE COURT DECISIONS1

Model 1 Model 2

Beta Odds Ratio Beta Odds Ratio

Legal Period2
Pre-Smith (Pre-Smith = 1) 0.569∗∗ 1.77 0.597∗∗ 1.82
RFRA Period (RFRA = 1) 0.792∗∗∗ 2.21 0.757∗∗∗ 2.13
Compelling Interest Test (Yes = 1) −0.380∗∗ 0.68 −0.376∗∗ 0.69
Cite Other Cases (Yes = 1) −0.172 0.84 −0.212+ 0.81
Individual or Group Case (Group = 1) 0.137 1.15 0.162 1.17
Level of the Court
State versus Federal (Federal = 1) −0.308∗ 0.74 −0.309∗ 0.73
Region (Midwest as Reference)
Northeast 0.108 1.11 0.108 1.11
South 0.019 1.02 0.035 1.04
West 0.081 1.08 0.060 1.06
Religious Affiliation3
Christian (General) — — −0.914∗∗ 0.40
Catholic — — −0.937∗∗ 0.39
Jewish — — −0.620+ 0.54
Muslim — — −1.29∗∗∗ 0.28
Baptist — — −1.60∗∗∗ 0.20
Sects — — −1.07∗∗∗ 0.34
New Religions (Cults) — — −1.14∗∗∗ 0.32
Native American Religions — — −0.421 0.656
Number of Cases 1109 1109
Chi-Square 28.69∗∗∗ 54.57∗∗∗
Degrees of Freedom 9 17
Percent from Classification Table 61 64
+ p < 0.10, ∗ p < 0.05, ∗∗ p < 0.01, ∗∗∗ p < 0.001.
1
Establishment clause cases are not included in the table (N = 469). This is appropriate because not all
cases of this nature include a question of religious freedom. There were 65 cases in which serious harm
could be attributed to the religious group/individual’s actions and the court certainly ruled unfavorably. We
removed these cases to eliminate possible bias in favor of the theory and literature. Thus, the table presents
conservative estimates of the independent variables effects on court decisions.
2
The reference category for this variable is the Smith period of May 1990 to November 1993. This allows
for accurate comparisons of all legal periods in question.
3
The reference category is mainline Protestant churches, or those religions that are in the least tension
with society. The table also does not include atheists and cases in which a religious affiliation could not be
identified. These cases were purposefully removed because the goal is to test not only the effect of religious
affiliation on court decisions but, more importantly, to test if the various religions had a mitigating effect on
the original relationship between the legal periods and court decisions. Inclusion would not lend explanatory
value because there is no way to distinguish which religions were involved in court cases. Separate models
with the religious “unidentifieds” included did not alter the direction or significance of the estimates save
for significance of the pre-Smith period, which dropped to a level of p < 0.07.
438 JOURNAL FOR THE SCIENTIFIC STUDY OF RELIGION

Model 2 of Table 4 presents logistic coefficients with the various religious groups included in
the model. As can be seen, the original relationship of legal period holds even when the variable
of religious affiliation is included. The odds of a favorable decision for religious freedom cases
were approximately two to one for those periods separated from Smith. Additionally, the table
shows that those religions in tension with society are significantly less likely to receive a favorable
decision. The reference category is mainline Protestant (those least in tension with society) and
the results indicate that those in higher levels of tension have higher odds of an unfavorable ruling.
Again—with the exception of Native American religions—sects, cults, Baptists, and Muslims are
three times less likely to receive a favorable ruling. General Christians, members of the Jewish
religion, and Catholics are also less likely to receive a favorable ruling when compared to mainline
Protestants.
For Model 2 we also wanted to control for the total membership of the group to determine if
it was the size of the group or the level of tension that explained the low rates of favorable rulings.
Unfortunately, we were unable to obtain the group’s membership size for more than 20 percent
of the free exercise cases. When we controlled for the log of membership with the remaining
cases, the coefficient for size was a weak positive (p < 0.10) and only the coefficient for cults
showed substantial change. Because many of the cases we could not code for size were cults, this
change might be a product of the missing cases. With the lone exception of cults, the inclusion of
size made little difference in the remaining coefficients. We would caution, however, that a large
number of cases were missing from this analysis.
In addition to the fact that the legal period of Smith showed a statistically significant and
negative effect on religious freedom cases during aggregated periods, there is also the issue of
whether Smith would become a justification for denying religious freedoms. Like many cases
that came before it, the case set precedent for how future cases could be decided. In particular,
Smith was charged with opening the door for generally applicable laws to be applied to cases of
religious freedom, and the implication was that it would now be easier for the courts to deny free
exercise claims.
Table 5 tests this by examining the full models from Table 4 with only those free exercise
cases that came after the Smith decision of April 1990.17 Data support the claims from literature
that the Smith case served as a precedent for later court decisions. For example, both models
show a strong negative relationship between citing Smith and favorable decisions by the courts,
even when controlling for exogenous and other control variables. In decisions where Smith (or a
law of general applicability stemming from it) was cited, the odds of a favorable decision were
significantly reduced by a factor of three to one.
Table 5 goes beyond merely testing the specific citing of Smith, however, as Model 2 includes
the addition of the legal period of Smith into the equation. Table 4 revealed that legal period by
itself had a negative impact on court decisions, but would the period effect hold when controlling
for the specific impact of Smith being cited in the decision? Indeed, though the odds are reduced
slightly, a statistically significant coefficient remains. The implication is that the precedent set
by Smith had a general effect on religious freedom cases beyond merely the specific citing of
this case or the general laws of applicability that stem from it. Not only can Smith be used as a
justification for denying a free exercise claim, but more generally such decisions perhaps involve
a very subtle influence on determining how court actions will proceed under “new” parameters
set by such a decision.
Although the effect of Smith has been demonstrated, questions remained in the substantive
literature concerning the impact RFRA had on returning the courts to traditional protective pro-
cedures. A few scholars felt that RFRA was not having the intended effect (Frame 1996). For
instance, Carl Esbeck of the Missouri School of Law considered RFRA only a weak attempt to
correct Smith. Esbeck explains that there is “ambiguity over what is meant by ‘substantial bur-
den’” in the wording of RFRA and that “some courts are interpreting ‘substantial’ to mean that
a religious practice must be central to religious belief to merit protection under RFRA” (quoted
RELIGIOUS REGULATION 439

TABLE 5
LOGISTIC COEFFICIENTS FOR CITING SMITH OR LAWS OF GENERAL
APPLICABILITY ON FAVORABLE COURT DECISIONS, CONTROLLING
FOR THE EFFECT OF THE LEGAL PERIOD OF SMITH1

Model 1 Model 2
Beta Odds Ratio Beta Odds Ratio
Smith/General Law Cited (Yes = 1) −1.21∗∗ 0.30 −1.20∗∗ 0.30
Legal Period2
Legal Period of Smith (Smith = 1) — −0.510∗∗ 0.60
Compelling Interest Test (Yes = 1) 0.244 1.28 0.158 1.17
Cite Other Cases (Yes = 1) −0.145 0.87 −0.072 0.93
Individual or Group Case (Group = 1) 0.110 1.12 0.145 1.16
Level of the Court
State versus Federal (Federal = 1) −0.545∗∗ 0.58 −0.504∗ 0.60
Region (Midwest as Reference)
Northeast 0.150 1.16 0.126 1.13
South 0.077 1.08 0.060 1.06
West 0.075 1.08 0.069 1.07
Religious Affiliation3
Christian (General) −0.451 0.64 −0.466 0.63
Catholic −0.889∗ 0.41 −0.889∗ 0.41
Jewish −0.485 0.61 −0.530 0.59
Muslim −1.05∗ 0.35 −0.996∗ 0.37
Baptist −1.51∗ 0.22 −1.45∗ 0.24
Sects −0.775∗ 0.46 −0.750+ 0.47
New Religions (Cults) −0.686+ 0.50 −0.641+ 0.53
Native American Religions −0.177 0.84 −0.063 0.94
Number of Cases 489 489
Chi-Square 28.56∗ 34.32∗∗
Degrees of Freedom 16 17
Percent from Classification Table 62 63
+ p < 0.10, ∗ p < 0.05, ∗∗ p < 0.01, ∗∗∗ p < 0.001.
1
Information from note 1 of Table 4 applies to this table as well. The number of cases is necessarily smaller
for these models because only cases that came after the Smith decision are analyzed. This is necessary in
order to test for the specific impact of the citing of Smith, or laws of general applicability from Smith, on
court decisions.
2
Because the Smith decision and the legal period constituting Smith coincide, the reference category is the
RFRA period that followed Smith three years later.
3
See note 3 from Table 4. Again, cases in which a clear religious body could not be identified were also
run in models not presented here. It did not change the significance or direction regarding the citing of
Smith or other independent variables. However, the legal period of Smith dropped to a nonsignificant level
of p < 0.11.

in Frame 1996).18 The contention is that such wording leaves considerable discretion to the civil
courts to decide what is central or peripheral to the religious claimant.
Table 6 explores these issues by examining those cases that cite Smith but only within a
subset of cases that followed the RFRA decision of November 1993. The results tend to confirm
the suspicions of the substantive literature. Model 1 shows the results for citing Smith without
440 JOURNAL FOR THE SCIENTIFIC STUDY OF RELIGION

TABLE 6
LOGISTIC COEFFICIENTS FOR CITING SMITH OR LAWS OF GENERAL
APPLICABILITY ON FAVORABLE COURT DECISIONS, CONTROLLING
FOR THE CITING OF RFRA1

Model 1 Model 2
Beta Odds Ratio Beta Odds Ratio
Smith/General Law Cited (Yes = 1) −1.30∗∗ 0.27 −1.31∗∗ 0.27
RFRA Cited in Case (RFRA = 1) — — −0.076 0.93
Compelling Interest Test (Yes = 1) 0.133 1.14 0.273 1.12
Cite Other Cases (Yes = 1) 0.414∗ 1.51 0.403∗ 1.50
State or Federal Case (Federal = 1) −0.267 0.76 −0.253 0.78
Number of Cases 437 437
Chi-Square 10.29∗ 10.38+
Degrees of Freedom 4 5
Percent from Classification Table 54 54
+ p < 0.10, ∗ p < 0.05, ∗∗ p < 0.01, ∗∗∗ p < 0.001.
1
The number of cases for these models is smaller than previous models because only cases that came within
the period of RFRA are analyzed. Consequently, only previous significant exogenous variables are included
in the model. We were unable to put religious affiliation or the individual/group variable in these models
because of a serious deterioration in the number of cases across categories. We also recognize that the model
chi-squares are marginally significant, but feel that this is still pertinent information to report. In part it is
also a result of a low number of cases to work with and we intend to pursue the addition of cases as they
become available.

controlling for RFRA. Even within the period of RFRA when cases cited Smith, the odds of a
favorable decision were significantly reduced by almost four to one (e(−(−1.30) ). The exogenous
variables display a positive effect on court decisions, with the citing of other court decisions being
significantly positive to the outcome.
What about RFRA? Would citing this congressional act significantly reduce the effect of
Smith? Model 2 presents the logistic coefficients to test for this, and the results do not support
such a contention. In fact, the striking finding is that RFRA, though not significant, is negatively
related to a positive outcome in court decisions. Further, Smith remained significant. These results
indicate that even when Smith and RFRA are placed in the equation together, the more powerful
factor is the original decision from Smith. RFRA, a legislative act, has apparently not been able
to counteract the strength of the legal ruling of Smith.

DISCUSSION

The Supreme Court’s Smith decision managed to form a most unlikely political alliance.
Protestant sects, the American Jewish Congress, the American Civil Liberties Union, and a sizeable
group of scholars protested the ruling as opening the door for majoritarian oppression of minority
rights. This alliance later supported the passage of the Religious Freedom Restoration Act. Yet,
despite the anecdotal evidence supporting the charge of minority religions being oppressed, there
was little effort to systematically test this emotionally charged issue.
The evidence presented here provides the first attempt to document recent trends in court
decisions on religion. Using The Religious Freedom Reporter to code all religion cases from 1981
to 1996, we constructed a comprehensive file that could document the trends, evaluate the charges
against the Smith decision, and test arguments of supply-side theories of religious change.
RELIGIOUS REGULATION 441

We found that even prior to the Smith decision the high-tension faiths (i.e., religions holding
a high level of separation, antagonism, and distinctiveness with the surrounding sociocultural
environment) were more likely to be involved in court cases and to receive unfavorable rulings.
The only surprise was that the Baptists and Roman Catholics, two groups with representation on
both sides of the sect-church divide, had relatively low rates of involvement in the courts and a
relatively low rate of favorable rulings. Still, the overall trend shows sects, cults, and other minority
religions holding high rates of involvement in court cases and a low rate of favorable rulings. By
contrast, mainline Protestants seldom appeared in the courts and their rate of favorable rulings
towered over all other religious groups. The multivariate models provided additional confirmation
that the high-tension religions were less likely to receive favorable rulings from the court.
Despite the low rate of favorable rulings for these religions, however, the courts remain
an important recourse for religions seeking religious freedom protections. Seventy six percent
of all free exercise cases were initiated by religious groups, compared to only 22 percent of
the religious establishment cases. Religions were seeking protection in the free exercise cases,
but were the targets of legal actions in the establishment cases—where they were charged with
crossing the church-state divide. The question now arises: Will the perceptions of the court as
the protector of minority rights persist, or will the minority faiths soon grow wary of the courts?
McLoughlin (1971) reports that during Colonial times Baptists seldom appealed their cases to
the courts because they had no representation “on the bench, none at the bar, and seldom any on
the juries.” Evidence from this research makes McLoughlin’s observation all the more real for the
contemporary changes that are taking place in the courts today.
Finally, the analysis confirmed that the Smith case has had both a period effect and a case
precedent effect. The period effect was shown by the lower rate of favorable decisions for religious
groups prior to RFRA, but after the Smith case. The case precedent effect was supported by the
negative effect of a specific citing of the Smith decision. The negative coefficient for Smith
remained strong even after the passage of RFRA, and when the citing of RFRA was entered
as a control. This lends support to the legal scholars’ argument that RFRA was an ineffective
legislative attempt to counteract the Smith decision.
Previous tests of supply-side arguments have shown that major shifts in the state’s regulation
of religion have resulted in major changes in the religious economy. Anthony Gill (1998) has
documented how the lifting of religious regulations in Latin America unleashed a surge of new
sects and contributed to the dominant Catholic church advocating political and economic reforms
benefiting the people rather than an existing political regime. After World War II, when the
new Japanese Constitution stated that “freedom of religion is guaranteed to all” and that “[n]o
person shall be compelled to take part in any religious act, celebration, rite or practice” (Nakano
1987:132), new religions were described as arising “like mushrooms after a rainfall” and the new
era was described as the “rush hour of the gods” (McFarland 1967). And in the United States, the
gradual deregulation of religion allowed a host of new religions to arise in the early 19th century
and a handful of these upstarts grew at a torrid pace. But each of these examples has tested the
effects of major shifts in religious regulation.
This research has shown that even subtle shifts in religious regulation will affect minority
religions. Although not testing for the long-term consequences of changes in religious regulation,
the research has shown that even modest changes in the state’s regulation of religion will have
an immediate impact on the minority religions holding a tension with their surrounding culture.
Religious minorities are the first to benefit when religious regulations are lifted, and the first to
be stifled when regulations are allowed.

NOTES

1. The issue is that Employment Division of Oregon v. Smith overturned the 1963 landmark case of Sherbert v. Verner (374
U.S. 398). Following the Sherbert case, the Court had developed a tri-partite test—later known as the “Sherbert” or
442 JOURNAL FOR THE SCIENTIFIC STUDY OF RELIGION

“compelling interest” test—designed to balance governmental interests against issues of religious freedom. Essentially,
the judiciary followed a series of three questions (cf. Flowers 1994). The first was to determine if the government has
burdened the free exercise claim being brought before the Court. Secondly, if the government has burdened a religious
freedom, the Court was to determine a compelling reason for doing so. Finally, even if there is a compelling reason,
is there an alternate means to settle the case without burdening the religious belief or action under question.
2. Justice Kennedy remarked in his majority opinion: “The power to interpret the Constitution in a case or controversy
remains in the judiciary” (quoted in the New York Times, June 26, 1997).
3. Included in the sample is 1 case from 1979, 8 cases from 1980, and 36 cases from the January–February, 1997 editions
of The Religious Freedom Reporter. These first few months of 1997 were also examined because of a one-month lag
in reporting of cases. Hence, many 1996 cases were also included within the first two months of the 1997 calendar
year.
4. The First Amendment has two clauses relating to religious concerns: “Congress shall make no law respecting the
establishment of religion,” the establishment clause, “or prohibiting the free exercise thereof,” the free exercise clause.
5. Tension refers to the degree of distinctiveness, separation, and antagonism in the relationship between a religious
group and the “outside” world. Thus, depending on their level of tension, groups can be more or less sect-like (or
church-like) (Stark and Finke 2000).
6. For a more complete discussion on why state-supported faiths are inefficient in meeting the demands of all potential
consumers, see Stark (1998), Finke (1997), Hamberg and Pettersson (1994), and Iannaccone (1992).
7. Despite being the second largest religious group in many European nations, Jehovah’s Witnesses continue to face
persecution.
8. Information concerning the collecting of cases comes from a discussion with the Managing Editor of The Religious
Freedom Reporter.
9. Outside contributors include, for example, private legal foundations, the American Family Association, Church of
Scientology, and the National Legal Foundation.
10. Perhaps as further evidence of the comprehensive nature of the Reporter, some cases were simply not First Amendment
claims but instead involved other civil or criminal proceedings. Although relatively small in number, it was not
unusual to come across cases of inter- or intrachurch disputes, employee relation claims, or, in some instances, clergy
misconduct.
11. In a very few cases there was a problem of conflict in coding. For instance, there were cases in which two religious
groups (or individuals) happened to be claiming a breach of religious freedom. Because such cases could not be
adequately used to test the hypotheses proposed, they were dropped from the sample.
12. We also recognized that there could be extreme cases in which it would be impossible to rule favorably for the religious
group or individual involved. For example, in one case a father beat his son to death in an attempt to release “sin” from
the boy’s body. He then made a claim of free exercise during criminal proceedings and the court obviously denied
the claim. The point, however, is that we coded for highly unusual decisions—ones that were sure to result in an
unfavorable ruling for religion—and consequently removed them from the analyses. This resulted in a more rigorous
test of the literature and theory.
13. Several sources were used to gain knowledge of the background and beliefs of the various religions we encountered.
The most useful source was J. Gordon Melton’s (1991) Encyclopedia of American Religion, but we also turned to
Mead’s (1995) Handbook of Denominations in the United States.
14. This points back to our earlier comment about the media covering only high-level Supreme Court decisions. Such
coverage does not reveal figures that apply to all levels of the judiciary and offers little evidence that such cases are
representative of all court actions.
15. The legal periods constitute the following: the pre-Smith period includes those cases in the years up to the month of
the Smith decision in April 1990; the Smith period includes those cases from May 1990 to November 1993; and the
RFRA period encompasses the cases from December 1993 to January/February of 1997.
16. To organize the variables in another way would not provide a full range for testing the relevant periods. For example,
to use the pre-Smith period as the reference category would mean that RFRA is being compared to a period prior to
Smith, during which conceivably no change had taken place.
17. The N is smaller in these models for the obvious reason that Smith and laws of general applicability do not apply to
cases prior to it. To test for the effect of Smith, we needed to capture that subset of cases that potentially could cite it
(N = 498).
18. The Religious Freedom Restoration Act (RFRA) is an act of the 103rd Congress that was designed to protect the free
exercise of religion. Briefly, the purposes are to (1) restore the compelling state interest test as set forth in Sherbert v.
Verner, 374 U.S. 389 (1963) and Wisconsin v. Yoder, 406 U.S. 205 and to guarantee its application in all cases where
the free exercise of religion is substantially burdened; and (2) provide a claim or defense to persons whose religious
exercise is substantially burdened by the government. In general, the act is designed to ensure that the government
will not substantially burden the free exercise of religion even if the burden results from a rule of general applicability.
The government can impose such a burden only if it demonstrates that such action furthers a compelling interest of
the state and attempts to find the least restrictive means of imposing such action. The full text of RFRA additionally
indicates that the establishment clause of the First Amendment is not affected by the proposed act.
RELIGIOUS REGULATION 443

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