The Supreme Court Decision



When the case was accepted by the Supreme Court, it garnered national attention. As one indicator of the importance of the case, amici briefs began to pour into the court. Altogether, 27 of these were submitted, 19 on the archdiocese and the federal government’s side and 7 in support of the city (with one taking neither side).1 The most important of the amici parties, given the large stakes for federalism, was a group of states, led by Ohio. That state’s attorney general, in fact, was allowed to participate in oral argument. Thus both parties had the support of governmental entities. Clearly, the direct interests of the parties—building a new church versus historical preservation—had been swallowed by much larger issues.


Supreme Court Decision Fourteenth Amendment Free Exercise Enforcement Power Religious Liberty 
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  1. 9.
    The cases and their implications are discussed in Daniel O. Conkle, “The Religious Freedom Restoration Act: The Constitutional Significance of an Unconstitutional Statute,” Montana Law Review 56 (1995): 39–93.Google Scholar
  2. 13.
    These cases are listed in footnote 2 of the brief. Further discussion can be found in Douglas Laycock, “Conceptual Gulfs in City of Boerne v. Flores,” William and Mary Law Review 39 (1998): 743–44.Google Scholar
  3. 18.
    See Kurt T. Lash, “The Second Adoption of the Free Exercise Clause: Religious Exemptions under the Fourteenth Amendment,” Northwestern Law Review 88 (1994): 1106–54 for an extended discussion.Google Scholar
  4. 21.
    Charles E. Hughes, The Supreme Court of the United States (New York: Garden City Publishing, 1936): 58. On oral argument in general see Timothy Johnson, Oral Arguments and Decision Making on the U.S. Supreme Court (Albany: State University of New York Press, 2004).Google Scholar
  5. 29.
    There are a number of excellent works on the history of the Fourteenth Amendment. Among the most highly regarded are William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, MA: Harvard University Press, 1988); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986); Earl Maltz, Civil Rights, The Constitution, and Congress, 1863– 1869 (Lawrence: University Press of Kansas, 1990); Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (New York: Henry Holt, 2006); and Richard L. Aynes, “On Misreading John Bingham and the Fourteenth Amendment,” Yale Law Journal 103 (1993): 57–104. With the exception of Epps’s book, all would have been available to Kennedy. However, he chose to rely solely on a much older work, Horace E. Flack, The Adoption of the Fourteenth Amendment (Baltimore, MD: Johns Hopkins University Press, 1908).Google Scholar
  6. 40.
    On Kennedy’s jurisprudence, see Frank Colucci, Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty (Lawrence: University Press of Kansas, 2009), and Helen J. Knowles, The Tie Goes to Freedom (Lanham, MD: Rowman and Littlefield, 2009).Google Scholar

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© Jerold Waltman 2013

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