ABSTRACT

The Jehovah’s Witnesses cases of the late 1930s and early 1940s presented some of the first instances of American Supreme Court’s attempts to grapple with the challenges of a multicultural society. Taken as a whole, these cases represented a favorable position towards minorities’ claims, even to some extent a path breaking one. The Jehovah’s Witnesses cases were a precursor of the Court’s growing involvement in the protection of minorities’ rights, which colored the entire second half of the 20th century. They further introduced a new language, and new judicial forms into constitutional jurisprudence – the language of balancing and balancing tests. In all these aspects the Jehovah’s Witnesses cases seem to have shown the early sings of multicultural ideology in Supreme Court jurisprudence. However, not all Jehovah’s Witnesses cases showed the same kind of judicial willingness to protect minorities’ interests from the will of the majority, and not all involved the new judicial rhetoric of balancing. What explains these different judicial responses in cases which are similar in their facts and close to each other in time? In this article I will attempt to distinguish between three types of Jehovah’s Witnesses cases and argue that the different judicial responses in each of them indicates a different structure of the multicultural conflict, and a different structure of the multicultural claims in each of them.

The argument relies on a model which I developed elsewhere, in which I identify two types of claims, and two types of conflicts within constitutional law generally – first order/accommodation claims, and second-order/anti-discrimination claims. At the end of the analysis, the initial presumption – i.e., that the Court accepted a multicultural ideology - is questioned. It appears that the Court may not have been so willing to accept ‘true’ multicultural claims, and, maybe, rightly so.