Academic Legal Writing - Eugene Volokh [193]
203 Free speech hybrid claims, for example, could cover proselytizing and worship services. Parental right hybrids could cover educational issues. And freedom of association claims could potentially protect all group ceremonies, gatherings, or concerted efforts.
216 Those states are Alabama, Minnesota, California, and Connecticut. They were chosen with an eye toward assembling a group that represented states of different sizes and in different parts of the country.
261 The term “majority” appears in quotations because, although the distinction between majority and minority religions is made regularly in academic literature, it is difficult to discern precisely which religion or religions comprise the majority. A recent Gallup Poll revealed that 56% of those surveyed consider themselves Protestant, while 25% consider themselves Catholic, 2% Jewish, 6% “other” (a group that includes Eastern Orthodox, Mormons, and Muslims), and 11% expressed no preference or affiliation. Protestants alone, or together with Catholics, are normally considered the “majority” religion or religions, but this characterization—although numerically correct—overlooks the different denominations within these groups. Southern Baptists, Fundamentalists, Evangelicals, and Methodists are all Protestants, for example, but harbor different religious and, at times, political beliefs. If one views religious groups in terms of denominations, there is simply no numerical majority religion. See Yearbook of American & Canadian Churches 1987 (Constant H. Jaquet, Jr. ed., 1987) (listing 128 distinct religious bodies and 345,961 churches in the United States). Although defining the term “majority” more precisely is beyond the scope of this Note, and as used here “majority” religion will connote those religions generally considered within the mainstream of American society (i.e., Protestants and Catholics), it should at least be recognized that this is an inherently inaccurate term as applied to religious groups. There is simply no religious majority, for example, akin to the white majority.
263 It is interesting in this regard to consider Representative Solarz’ statement that our nation has always accommodated religion, citing as an example “the use of wine in religious ceremonies during Prohibition.” His clear implication is that the Court historically has been responsible for such accommodations, and that they are now in jeopardy as a result of Smith. Yet the exemption for sacramental wine during Prohibition was created by Congress, not the Court.
270 [The scholar] reviewed a series of Supreme Court cases rejecting free exercise claims brought by non-Christians, and observed that although “[e]ach of these cases can be explained away, ... to one who pays attention to bottom line results, the pattern is troubling.”
Professor McConnell takes issue with [this] argument. Although he shares [the scholar's] “pessimistic assessment” of the Supreme Court's handling of free exercise claims, he argues that judges are more likely to accept free exercise claims brought by “nonmainstream” groups than mainstream ones, because they are less likely to question the latter groups' claims about religious necessity. Professor McConnell's argument appears to be that the more bizarre the sect, the more likely the judge will accept their religious claims. Whatever the merits of this argument may be, Professor McConnell nonetheless admits that “non-Christians never win, and Christians almost never win, either.” For