Abstract
In a prior article, I discussed how the Court nearly revolutionized its Free Exercise Clause jurisprudence in the case Jensen v. Quaring. After oral argument, the justices voted five to three (with Justice Lewis Powell not participating) to reject a free exercise challenge to a state law that required photos on drivers licenses. When Chief Justice Warren Burger circulated a draft opinion that would have radically altered the Court's approach to the Free Exercise Clause, Justice Blackmun switched his vote from the majority, leaving the Court split four to four.' Following convention, the Court then affirmed the lower court without opinion, and Chief Justice Burger's draft opinion remained in the Court's files.
This Article picks up the behind-the-scenes story as the Court turned from Jensen to the case Bowen v. Roy.' Bowen involved a family seeking federal welfare benefits who objected to the government's requirement of a social security number. The government claimed that use of social security numbers number allowed it to more efficiently administer the program and prevent fraudulent claims. The parents countered that use of social security numbers violated their deeply held religious beliefs. The question was whether the Free Exercise Clause required the government to exempt religious objectors from the social security number requirement.
This Article examines the Court's decision making process in Bowen using unpublished correspondence and draft opinions from the papers of Justices Harry Blackmun and Lewis Powell. These materials show the justices' concern with a possible slippery slope if religious believers were exempt from generally applicable laws and regulations. That common concern pulled the justices in different directions, fracturing the Court and leaving no majority position. The internal papers, however, show that a majority existed for one approach, but concerns over justiciability prevented a majority from formally adopting that position. Consequently, Bowen left the Court's Free Exercise Clause jurisprudence seemingly in disarray, and left the Court open to take a new direction in the future.