Supreme Court study paints incomplete portrait of religious freedom precedent
The U.S. Supreme Court. Creative Commons photo.
(ANALYSIS) A new study accepted by the University of Chicago Law School’s journal Supreme Court Review examines seven decades of Supreme Court precedent on religious freedom protections, concluding that under Chief Justice Roberts, the Supreme Court has upheld religious freedom protections 80% of the time.
This recent trend is in sharp contrast to previous Supreme Court rulings going back 70 years. In the time between 1953 and the beginning of the Roberts Court, the Supreme Court ruled in favor of religious organizations only about 50% of the time. And, according to the study: “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.”
The New York Times’ Adam Liptack recently covered the study, and overall shifts of religious freedom case law in recent years, in his column. He examined recent research by Zalman Rothschild, a fellow at the Stanford Constitutional Law Center who wrote that “the politicization of religious freedom has infiltrated every level of the federal judiciary.” Liptack also wove a 2018 quote into his article from Elena Kegan where she claimed the Court’s conservatives were “weaponizing the First Amendment.”
It is worth noting that Kegan’s quote refers to “economic and regulatory policy” and not the First Amendment’s religion clauses. Liptack’s column decisively focuses on painting a picture of the Supreme Court, and the federal judiciary more generally, as using political power to strongarm positive outcomes for conservative Christian institutions and values.
Yet, while there is some truth to this narrative, it is not the whole story.
One possible explanation for the shift in the Roberts Court being more favorable to religious freedom petitioners, according to a statistical analysis, is simply the demographic change in the Court. The Roberts Court has more members who are religiously observant and philosophically conservative, a marked shift from previous Supreme Court makeups.
The study characterizes the Supreme Court’s previous approach to religious freedom as one that interpreted the First Amendment’s religion clauses to offer “weak but meaningful” safeguards for minority faiths from adverse treatment by public policies that privileged “mainstream Christian organizations, practices, or values.” But the study’s authors also admit that conservative Christian values are no longer mainstream.
The study characterizes the First Amendment as providing “little protection for mainstream religions”, noting that the establishment clause actually limited dominant faith traditions’ ability to shape public policy. Whereas, under the Roberts Court, according to the study, religion jurisprudence has more frequently favored “mainstream Christian values or organizations under threat from secular laws or liberal constitutional protections.”
Overall, the study describes the Supreme Court’s changing interpretation of the religion clauses under the Roberts Court as “a political power play.” But at least this explanation is given with self-awareness. The study also describes legal scholars like Michael McConnell who, according to the study, had lamented when “decades ago the Supreme Court was too stingy with religious rights” and now welcome this shift in jurisprudence. The study characterizes those who align with McConnell as believing that the Constitution protects religious freedom of both minority and majority religions, and earlier Supreme Court precedents did not adequately protect these freedoms.
“Ironically, McConnell’s defense of the Court sounds more like the liberal defense of minority religious rights than the modern’s Court’s robust protection of mainstream Christian Values,” the study states.
However, the study also acknowledges McConnell’s position could also be interpreted to recognize the ways in which historic, orthodox Christian institutions and values are no longer in the mainstream, given the shifting public opinion regarding sexual ethics, concluding that “there is some evidence” that the Court's recent heightened protection for religious freedom is a trend rather than a few “anomalous” cases. The study recognizes that the conservative values often yoked with conservative Christianity have “become less popular in recent decades.”
The study also notes the decline of religious belief and observance, coupled with growing pluralism of religions and belief systems in the public square. Importantly, the study recognizes that the liberal justices themselves were divided in quite a few cases in the Roberts Court, with some siding with the conservative majority.
The study’s conclusion focuses specifically on the recent rise of Christian institutional responses “to counter secular trends in America and in policy and constitutional law.” The study notes that according to some recent analysis: “conservative Christians have taken a page from the civil rights movement and gone to the courts, hoping to expand religious rights.” The study also notes conservative Christians have formed legal and advocacy organizations to litigate their religious freedom in the courts, trained rising attorneys, and engaged in activism for conservative judicial appointments.
Throughout the majority of the study, the authors refer to mainstream Christian organizations as having orthodox theological beliefs related to sexual ethics, family structures and bioethics. In fact, the New York Times quotes one of the study’s authors, Lee Epstein of Washington University as stating: “[The Roberts Court] is using the religion clauses to privilege mostly mainstream religious organizations.”
Yet, the study’s authors also admit that Christian conservativism has “been transformed from the mainstream ideology of the country into the agenda of a minority group, which claims to need and deserve protection under the Constitution. This group has benefited from some like-minded or sympathetic justices, some of whom received the support of evangelical Christian organizations when they were nominated.”
So, although the study’s authors are perhaps less than happy with this development, there is recognition that theologically conservative Christian institutions no longer represent the “mainstream” in terms of public policies and public opinion. The study’s last several pages pay brief, though proper homage, to this reality.
Chelsea Langston Bombino is a believer in sacred communities, a wife, and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.