Study: Supreme Court Consistently Vindicates Religious Liberty From Government Overreach

COMMENTARY: The study’s authors collected data from every Supreme Court case that produced a judicial opinion relating to the Free Exercise or Establishment Clause from the 1953 to the 2019 term. In the last 15 years, 81% of the time religion won.

The pro-religion outcomes of the current Supreme Court are a highly significant turn of events.
The pro-religion outcomes of the current Supreme Court are a highly significant turn of events. (photo: St. Patrick's Cathedral / Unsplash)

Last year, my family spent Easter Sunday sitting on the living room sofas watching Mass on a laptop. This year we were in the pews. What a blessed relief! 

We’re not quite out of the woods yet, however. While some of the more extreme restrictions on the right to worship imposed by local and state governments in reaction to the coronavirus pandemic have been lifted or stopped by court order, other forms of government restriction on religious freedom continue, such as the exclusion of a religious student club at a state college and the denial of COVID relief funds for Catholic schools in South Carolina, to name just a few.   

On the good-news front, a recent study has confirmed that during the tenure of Chief Justice John Roberts the Supreme Court consistently has vindicated religious liberty from government overreach. This probably doesn’t come as a surprise to you, but the details are fascinating. 

The study was conducted by professors Lee Epstein of Washington University in St. Louis and Eric Posner at the University of Chicago Law School. The authors reviewed “every Supreme Court case that produced a judicial opinion relating to the Free Exercise or Establishment clause from the 1953 to the 2019 term, excluding cases that were decided without oral argument.” 

They found that the Supreme Court under the conservative majority of the last 15 years is much more likely than before to decide cases in favor of religious rights. (Their review did not include recent pro-religious-freedom cases involving the court’s most junior justice, Amy Coney Barrett.) 

Specifically, religious rights won 81% of the time since Roberts became chief justice in 2005. Previously, the total was about 50% (the wing advancing religious freedom prevailed 46% of the time when Earl Warren served as chief justice, 51% during Warren Burger’s tenure, and 58% during the William Rehnquist-led court). The pro-religion outcomes of the current Supreme Court are a highly significant turn of events.

Epstein and Posner write: 

“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.” 

Today’s victors, by contrast, are often from a mainstream Christian organization. “Conservative Christians have taken a page from the civil-rights movement and gone to the courts, hoping to expand religious rights,” note the authors. I get the sense that the authors aren’t too thrilled about this. 

Adam Liptak, in a recent New York Times article highlighting the study, pointed out that the latest “claims of religious freedom, brought mostly by Christian groups, have increasingly been used to try to limit progressive measures like the protection of transgender rights and access to contraception.” He also seemed to be lamenting that “a culture war erupted about how best to address the coronavirus.” 

Time for some perspective. Does this mean that religious minorities are no longer protected? Of course not. Instead, the Supreme Court is now extending the protections for minority religions to encompass majority religions too because rules protecting one religious group are to the benefit of all religious groups.  

What findings of the study jump out? (Spoiler alert: It has everything to do with personnel.)

“The justices who are largely responsible for this shift are Clarence Thomas, Samuel Alito, Neil Gorsuch, John Roberts and Brett Kavanaugh,” observe Epstein and Posner. (Again, their study did not include recent cases after the confirmation of Justice Barrett.) 

“They are clearly the most pro-religion justices on the Supreme Court going back at least to 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,” they write. Additionally, “Republican and conservative justices are more pro-religion than other justices are,” the authors observe.

Epstein and Posner also cite a study conducted by Stanford’s Zalman Rothschild. He found a similar correlation when looking at the federal judiciary generally. 

In cases challenging lockdown orders targeting houses of worship, Rothschild found that 66% of Republican-appointed judges ruled in favor of the religious organizations. Strikingly, 100% of Democrat-appointed judges ruled in favor of the government. Yes, that’s correct: Every Democrat-appointed judge sided with government officials restricting religious worship.

Do these findings mean that the Supreme Court’s majority is a group of activist judges creating new law from the bench favoring religious believers? Not at all. Pro-religious-liberty decisions vindicate the specific protection offered by the First Amendment’s religious-freedom clauses. 

Briefly mentioned in the Epstein and Posner study is the role of the federal government in religion cases. “Trump’s Solicitors General supported religion in all the cases in which they participated, but so did Clinton’s,” they write. And that brings us to the big question: Will religious freedom find favor in the Biden solicitor general’s office? I’m doubtful. So are many in Washington. 

President Joe Biden has been vocal in opposing religious freedom in key matters. On the campaign trail he promised to get rid of the religious and moral objector rules exempting religious groups like the Little Sisters of the Poor from the Affordable Care Act’s contraceptive mandate. He favors legislation like the Equality Act that specifically excludes the protection of the Religious Freedom Restoration Act. (A quick reminder: This is America’s second Catholic president.) 

When abortion and gender ideology conflict with religious freedom in future cases before the Supreme Court — and they will — the new solicitor general won’t likely support the robust defense of religious freedom. It’s equally unlikely that President Biden will choose Supreme Court nominees with a history of protecting religious liberty. And, even if he were looking for Democrat-friendly nominees with such a history, he’d have a tough time finding any. 

As the COVID-19 lockdown decisions by liberal judges make clear, the days when they supported religious conscience rights are now a distant memory. 

Professors Epstein and Posner have crunched the numbers and have shown the increasing protection for religion at the Supreme Court. Religious-freedom cases currently pending before the court will likely result in pro-religion decisions. Does that mean that religious believers have nothing to worry about? 

No, it doesn’t. 

This last Friday, President Biden ordered the creation of a “Presidential Commission on the Supreme Court of the United States.” If that sounds ominous to you, it should. 

The commission’s purpose is to “provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.” Among the issues it will consider are the length of service and turnover of justices on the Court” and “the membership and size of the Court.” Columbia Law professor Phillip Hamburger calls the commission and recently proposed legislation to expand the number of justices on the Supreme Court an “intimidation game.” He warns that it will have “profound costs for the Constitution and our freedom.” I couldn’t agree more. 

Religious freedom has increasingly found favor before the Supreme Court. But this trend could quickly be reversed. However steadfast are the convictions of today’s religion-friendly justices, politicizing the court through “court-packing” (or merely the threat to do so) will have dreadful consequences for religious liberty.