Religion on big winning streak at Supreme Court

Adam Liptak

“For many today, religious liberty is not a cherished freedom,” Justice Samuel Alito told the Federalist Society, the conservative legal group, in November. “It pains me to say this, but, in certain quarters, religious liberty is fast becoming a disfavored right.”

Those quarters do not include the Supreme Court, which has become far more likely to rule in favor of religious rights in recent years, according to a new study that considered 70 years of data.

The study, to be published in The Supreme Court Review, documented a 35-percentage-point increase in the rate of rulings in favor of religion in orally argued cases, culminating in an 81% success rate in the court led by Chief Justice John Roberts.

“Plainly, the Roberts court has ruled in favor of religious organizations, including mainstream Christian organizations, more frequently than its predecessors,” wrote the study’s authors, Lee Epstein of Washington University in St. Louis and Eric A. Posner of the University of Chicago. “With the replacement of Ruth Bader Ginsburg with Amy Coney Barrett, this trend will not end soon and may accelerate.”

(The court led by Chief Justice Earl Warren, from 1953 to 1969, supported religion just 46% of the time. That grew to 51% under Chief Justice Warren Burger, from 1969 to 1986; then to 58% under Chief Justice William Rehnquist,

from 1986 to 2005; and finally jumped to just over 81% under Roberts, who joined the court in 2005.)

The kinds of cases the court is hearing have changed, too. In the Warren court, all of the rulings in favor of religion benefited minority or dissenting practitioners. In the Roberts court, most of the religious claims were brought by mainstream Christians.

The five most pro-religion justices all sit on the current court, the study found.

“The justices who are largely responsible for this shift are

Clarence

Thomas, Samuel Alito, Neil Gorsuch, John Roberts and Brett Kavanaugh,” the study’s authors wrote. “While there are some differences among these justices, and

Kavanaugh has been involved in only a handful cases, they are clearly the most pro-religion justices on the Supreme Court going back at least until World War II.” All are Republican appointees. In the last term alone, the court sided with Christian religious groups in three argued cases. The court ruled that state programs supporting private schools must include religious ones, that the Trump administration could allow employers with religious objections to deny contraception coverage to female workers and that employment discrimination laws do not apply to many teachers at religious schools.

The latest ruling came Friday when the court told California it can’t enforce coronavirus-related restrictions that have limited homebased religious worship including Bible studies and prayer meetings.

And the court soon will decide whether Philadelphia may bar a Catholic agency that refused to work with same-sex couples from screening foster parents.

After Barrett joined the court, it changed positions on the one question on which religious groups had been losing: whether governors could restrict attendance in houses of worship amid the pandemic.

There has been a similar shift in the entire federal judiciary in cases on the constitutional protection of free exercise of religion.

Protecting that right, as Alito pointed out in his speech, used to be a bipartisan commitment. In 1990, when the Supreme Court cut back on protections for free exercise, with Justice Antonin Scalia writing the majority opinion, Congress responded with the Religious Freedom Restoration Act.

“The law had almost universal support,” Alito said. “In the House, the vote was unanimous. In the Senate, it was merely 97 to 3, and the bill was enthusiastically signed by President Clinton.”