July 16, 2021
As significant legal and demographic changes have spread across the country in the past few decades, conflicts involving religious freedom have also increased.
Recent developments may signal a shift in some of these areas – providing modest hope that religious freedom will be increasingly valued.
First, on the legal front:
In the early 1990s, the U.S. Supreme Court significantly narrowed its protective treatment of religious exercise under the First Amendment by announcing that governments would only need to treat religious practice no worse than similar secular conduct.
This could have significant consequences, as Justice Samuel Alito recently pointed out with a hypothetical: “[S]uppose that a State, following the example of several European countries, made it unlawful to slaughter an animal that had not first been rendered unconscious. That law would be fine under [the court’s current interpretation of the free exercise clause] even though it would outlaw kosher and halal slaughter.”
However, within the last month, five of the nine justices have suggested they favor replacing the current approach to free exercise with one more protective of religious practice. This was clear in the recent decision that Philadelphia’s exclusion of Catholic Social Services from providing foster placements consistent with its religious mission was unconstitutional.
In a concurring opinion, two justices said that although this particular case was not the appropriate one to decide the question, they favored a more protective test. Three other justices joined another concurring opinion that endorsed the prior, highly protective legal standard.
Second, on the demographic front:
The most significant trend in recent years has been an increase in the number of Americans who do not affiliate with any religion. This is largely a personal matter, of course. But when fewer people see religious practice as significant in their own lives, this could have larger implications: for instance, if the decline in affiliation leads people to be less concerned when others’ practices are limited by government actions.
This is particularly likely when the government is burdening religious practice to advance interests that are increasingly popular, like increasing formal legal recognition of new family forms inconsistent with traditional religious teachings.
The trend is illustrated by a recent report of the Public Religion Research Institute, “The 2020 Census of American Religion.” The report notes: “Only 16% of Americans reported being religiously unaffiliated in 2007; this proportion rose to 19% by 2012, and then gained roughly a percentage point each year from 2012 to 2017,” hitting “a high point of 26% in 2018.”
This development is especially “pronounced among young Americans. In 1986, only 10% of those ages 18–29 identified as religiously unaffiliated. In 2016, that number had increased to 38%.” The report calls this a “generational sea change in religious affiliation.”
It is also a bipartisan phenomenon:
In 2006, just 4% of Republicans identified as unaffiliated. That proportion more than doubled to 10% in 2013 and continued to grow to 13% in 2020. The share of unaffiliated Democrats also more than doubled between 2006 (9%) and 2013 (22%). From 2013 to 2018 (28%), the share of unaffiliated Democrats grew slightly each year.
However, the PRRI report notes a surprising (if modest) reversal. The rise of the religiously unaffiliated appears to be slowing, with a decline from 26% in 2018 to 23% in 2020. The “share of unaffiliated Democrats” dropped from 28% in 2018 to 23% in 2020. The share of those 18-29 who are religiously unaffiliated “declined slightly in 2020, to 36%” from 38% in 2016.
These are preliminary numbers, but perhaps they signal that religion is beginning to play a significant role in the lives of more Americans. If so, maybe they will want to see religious practice protected – and let their policymakers know that.
These positive developments are new – and it will take time to see if they are sustained. But hope is an important religious value, and probably an appropriate one here.
Even though the Supreme Court does not resolve a large proportion of the cases that are presented to it, the decisions it does issue reverberate to affect many other disputes through the principle of precedent. Its decisions on a handful of cases can, over time, expand and contract the rights of the entire nation.
For many voters, 2020 may have been their first experience with voting by mail. However, VBM in both the United States and Utah specifically is not new. In America, VBM has a history that spans centuries.
The judiciary branch is designed as a responsive, not proactive, branch of government. The court can’t tell Congress not to pass an unconstitutional law or tell the president not to issue a legally invalid order. It must wait until after those actions take effect and someone challenges them.