Study finds major shift under Chief Justice John Roberts.
Today’s U.S. Supreme Court seems to favor religious freedom plaintiffs more than in past decades, according to a new study.
The court in recent years has become far more likely to rule in favor of religious rights, according to the study, which looks at 70 years of data.
Under Chief Justice John G. Roberts Jr., the high court has ruled in favor of religious organizations over 81% of the time, according to the study, to be published in The Supreme Court Review. That is significantly higher than the roughly 50% success rate for all previous eras since 1953.
“In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organizations,” according to an abstract from the study. “A statistical analysis suggests that this transformation is largely the result of changes in the Court’s personnel: a majority of Roberts Court justices are ideologically conservative and religiously devout — a significant break from the past.”
The study’s authors are Lee Epstein, the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis, and Eric Posner, the Kirkland & Ellis Distinguished Service Professor of Law and the Arthur and Esther Kane Research Chair at the University of Chicago. They argue that the Roberts Court has handed down a number of decisions that suggest a new approach to the Court’s religion jurisprudence.
“The religion clauses of the First Amendment were once understood to provide weak but meaningful protection for non-mainstream religions from discrimination by governments that favored mainstream Christian organizations, practices, or values,” the authors write. “The religion clauses provided little protection for mainstream religions — indeed, under the establishment clause, mainstream religion’s influence over government policy was restricted. Under the Roberts Court, the religion clauses have increasingly been used to protect mainstream Christian values or organizations that are under threat from secular laws or liberal constitutional protections.”
The authors look at the 93 orally-argued cases that produced a judicial opinion relating to the Free Exercise or Establishment clause of the First Amendment from 1953 to the 2019 term.
The court under Earl Warren, who was Chief Justice of the United States from 1953 to 1969, issued more rulings that were anti-relgion than pro-religion: 54.5% to 45.5%. Subsequent courts had more pro-religion outcomes, with 51.4% under Chief Justice Warren E. Burger (1969-1986), 58.1% under William H. Rehnquist (1986-2005), and, so far, 81.3% under Roberts.
The authors posit that the reason for the upswing is the presence on the court of justices such as Brett M. Kavanaugh and Clarence Thomas. “The top six most pro-religion judges sit (or sat) on the Roberts Court,” they write. They gave Kavanaugh a 100% pro-religion rating, Thomas 91.2%, Roberts 87.5%, Samuel A. Alito Jr. 86.7%, and Neil M. Gorsuch 85.7%.
“Plainly, the Roberts Court has ruled in favor of religious organizations, including mainstream Christian organizations, more frequently than its predecessors,” the study says. “With the replacement of Ruth Bader Ginsburg with Amy Coney Barrett, this trend will not end soon and may accelerate.”
The authors continue:
The quantitative results dovetail with doctrinal analysis that suggests that the Court has weakened the Establishment clause and strengthened the Free Exercise clause. Relaxation of the Establishment clause has benefited mainstream Christian (including Catholic) organizations because Christianity remains the overwhelming dominant religion in the United States, and in many jurisdictions evangelical Christians exercise significant political power. The trend with the Free Exercise clause is more complicated and uncertain. The Court has strengthened the Free Exercise clause which, in principle, could benefit minority religions that lack political power and so cannot block laws that interfere with their religious practices. In practice, the court’s rulings have mostly but not exclusively protected the conservative values of mainstream Christian organizations against secular laws, including public health orders to counter the Covid-19 pandemic and laws intended to prevent discrimination against sexual minorities and protect reproductive rights.
In recent months, the Court ruled against the strict COVID-19-era limits on numbers of people allowed to attend church services.
The justices who are largely responsible for the pro-religion shift are Thomas, Alito, Gorsuch, Roberts, and Kavanaugh, the study authors point out, calling them “the most pro-religion justices on the Supreme Court going back at least until World War II.”
“They are also all Christian, mostly Catholic, religiously devout (though this variable provides a weaker explanation than the others), and ideologically conservative. Amy Coney Barrett will likely advance this trend—though she may turn out to be closer to Roberts than to the other conservatives,” says the study. “By contrast, the dissenters are religiously mixed, not devout, and ideologically liberal. While correlation is not causation, it is hard to see any other explanation for the voting pattern.”