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implicated.34 Courts describe these situations as involving “hybrid rights,” and once again,
the scope of this doctrine is unclear and frequently litigated in the lower courts.

Religious Minorities

Given these many protections, it is not surprising that religion in the United States today is
highly diverse, and that members of religious minorities enjoy a degree of freedom and
equality with members of mainstream religions that is remarkable by world standards. But
these protections evolved over many years, the result of a long and difficult legal and
cultural struggle. As late as 1870, for example, Jews and other religious minorities could
not vote or hold political office in all states. Accommodations for Orthodox and Hasidic
Jews remain controversial to this day.35 The persecution of Mormons in the nineteenth
century entailed not only human but judicial atrocities.36 The experience of Native
Americans has been similar in that respect.37
Catholics were singled out for special disfavor in the mid- to late nineteenth century, when
waves of largely Catholic immigrants prompted political backlash and strong nativist
sentiment. The anti-Catholic “Know-Nothing” party briefly gained prominence in the 1850s
in Massachusetts. While the party is today little more than a historical footnote, its
activities had a lasting impact on the shape of American law more broadly. In that era,
Massachusetts amended its state constitution to prohibit government aid to “sectarian”
schools and other institutions. The amendment was designed to deny government aid to
Catholic schools, while permitting it to continue to flow to the “common schools,” which
taught the “common religion” of “nonsectarian” Protestantism. Similar amendments that
were subsequently passed in other states came to be called “Blaine Amendments,” named
after the congressman who tried and failed to enact one at the federal level.38 These
amendments remain the law in more than 30 states, and have been invoked in the present
day to block school-choice programs that would allow students and their parents to direct
public money to “sectarian” schools and, less frequently, to prevent government from
contracting with faith-based social service providers to help the needy.
By the late nineteenth century, barriers to political participation by Jews and Catholics
were removed (except for required religious oaths, which were invalidated in 1961 as
previously noted). In the middle of the twentieth century, the Supreme Court began to
construe the Free Exercise and Free Speech Clauses as protecting unpopular religious and
political viewpoints. This significantly improved the status of religious minorities. The
Jehovah’s Witnesses, a relatively new and decidedly unpopular group, won a series of legal
victories from the 1930s through the 1960s, establishing strong free speech and free
exercise precedent in the process. Most notable is their victory in West Virginia State Bd.
of Educ. v. Barnette (1943), in which the Supreme Court struck down mandatory recitation
of the Pledge of Allegiance in public schools. While this victory did not immediately end
the social and political ostracism of Jehovah’s Witnesses, it did reinforce the broader ideal
of religious freedom that serves that religious minority and so many others.
The Free Exercise Clause has been foundational to the protection of religious minorities.
The Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of
Hialeah (1993) is an excellent, relatively recent example of this principle at work. There,
the court struck down a series of local ordinances that did not mention religion or a

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