An Extraordinary Winning Streak for Religion at the Supreme Court


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

Those quarters don’t embody the Supreme Court, which has grow to be way more prone to rule in favor of non secular rights in recent times, in line with a new study that thought of 70 years of knowledge.

The examine, to be revealed in The Supreme Court Review, documented a 35-percentage-point enhance in the fee of rulings in favor of faith in orally argued instances, culminating in an 81 p.c success fee in the court docket led by Chief Justice John G. Roberts Jr.

“Plainly, the Roberts court has ruled in favor of religious organizations, including mainstream Christian organizations, more frequently than its predecessors,” wrote the examine’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 docket led by Chief Justice Earl Warren, from 1953 to 1969, supported faith simply 46 p.c of the time. That grew to 51 p.c underneath Chief Justice Warren E. Burger, from 1969 to 1986; then to 58 p.c underneath Chief Justice William H. Rehnquist, from 1986 to 2005; and eventually jumped to only over 81 p.c underneath Chief Justice Roberts, who joined the court docket in 2005.)

The sorts of instances the court docket is listening to have modified, too. In the Warren court docket, all of the rulings in favor of faith benefited minority or dissenting practitioners. In the Roberts court docket, most of the non secular claims have been introduced by mainstream Christians.

The 5 most pro-religion justices all sit on the present court docket, the examine discovered.

“The justices who are largely responsible for this shift are Clarence Thomas, Samuel Alito, Neil Gorsuch, John Roberts and Brett Kavanaugh,” the examine’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 final time period alone, the court docket sided with Christian non secular teams in three argued instances. The court docket dominated that state packages supporting non-public colleges must include religious ones, that the Trump administration might enable employers with non secular objections to deny contraception coverage to feminine employees and that employment discrimination laws do not apply to many lecturers at non secular colleges.

And the court docket will soon decide whether or not Philadelphia might bar a Catholic company that refused to work with same-sex {couples} from screening potential foster dad and mom.

After Justice Barrett joined the court docket, it changed positions on the one query on which non secular teams had been shedding: whether or not governors might limit attendance in homes of worship to deal with the coronavirus pandemic.

There has been an identical shift in the total federal judiciary in instances on the constitutional safety of the free train of faith.

Protecting that proper, as Justice Alito identified in his speech, was a bipartisan dedication. 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,” Justice Alito stated. “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.”

Earlier research, covering 1996 to 2005 and 2006 to 2015, discovered that judges’ partisan affiliations, as mirrored by political events of the presidents who appointed them, weren’t considerably tied to their votes in free train instances.

Zalman Rothschild, a fellow at the Stanford Constitutional Law Center, updated that data in a second examine, to be revealed in The Cornell Law Review. He discovered that issues had modified.

“The politicization of religious freedom has infiltrated every level of the federal judiciary,” Mr. Rothschild wrote.

In the 5 years by means of the finish of 2020, he wrote, federal judges’ partisan affiliations had grow to be powerfully correlated to their votes. “And when the pandemic struck, resulting in widespread lockdowns of religious houses of worship,” he wrote, “the unprecedented number of constitutional free exercise cases brought in such a condensed span of time forced that partisanship into sharp relief.”

Even placing apart instances regarding the pandemic, a giant partisan hole has opened in free train instances. Judges appointed by Democrats sided with faith 10 p.c of the time in such instances in the final 5 years, in contrast with 49 p.c for ones appointed by Republicans and 72 p.c for ones named by President Donald J. Trump.

The numbers have been even starker, Mr. Rothschild wrote, in instances regarding restrictions meant to fight Covid-19. Through the finish of final yr, not a single decide appointed by Democrats sided with faith in these instances, whereas 66 p.c of judges appointed by Republicans and 82 p.c of judges appointed by Mr. Trump did.

What modified in simply the final 5 years? It might be no coincidence that the court established a constitutional right to same-sex marriage in 2015.

More usually, claims of non secular freedom, introduced largely by Christian teams, have more and more been used to attempt to restrict progressive measures like the safety of transgender rights and entry to contraception. On prime of that, a tradition conflict erupted about how finest to deal with the coronavirus.

In 2018, Justice Elena Kagan accused the court docket’s conservative majority of “weaponizing the First Amendment,” of utilizing its safety of free expression “to intervene in economic and regulatory policy.”

Professor Epstein stated one thing related was afoot in the court docket’s faith selections. “Just as the majority has weaponized free speech in service of business and conservative interests,” she stated, “it’s using the religion clauses to privilege mostly mainstream religious organizations.”



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