Appeals to “hostility to religion” have been a regular part of the Supreme Court’s First Amendment jurisprudence for the last eighty years, but in all that time the Court has never provided a clear explanation of what constitutes “hostility to religion.” This lack of explanation has recently become increasingly troubling given the significant role that the concept of “hostility to religion” has played in several high-profile Supreme Court decisions within the last two years, including Masterpiece Cakeshop v. Colorado, Trump v. Hawaii, and American Legion v. American Humanist Association. In this paper, I provide a thorough and detailed history of the Court’s appeals to “hostility to religion.” Through the lens of that historical examination of the Court’s use of the concept of “hostility to religion,” I argue that the Court has come to use “hostility to religion” ambiguously to mean both the broad category of anything that fails to be neutral toward religion and the narrower category of specifically that which exhibits active animosity toward religion. I argue that this ambiguity has resulted in confused outcomes and may contribute to ratcheting up the culture wars. I further argue that the best remedy is for the Court to be clearer and more judicious in its appeals to “hostility to religion” going forward. I offer four suggestions for how the Court can do so.
Unclear Hostility: Supreme Court Discussions of “Hostility to Religion” from Barnette to American Legion,
Buff. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol68/iss2/5