What’s behind the ‘winning streak’ for religious freedom at the Supreme Court?

Written by William C. Duncan

April 27, 2021

Those watching the U.S. Supreme Court know that in the last few years, parties who claimed that their religious freedom had been infringed by government acts or policies have often won their cases. That fact has some people worried.

A recent Deseret News article discusses some of the possible reasons for the trend and some responses to it.

For example, it points to an upcoming article in the Supreme Court Review noting that since Chief Justice John Roberts has led the court, religious organizations have prevailed in their efforts to have their religious freedom vindicated “over 81% of the time, compared to about 50% for all previous eras since 1953.” It also notes: “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 authors of this piece conclude that the explanation for the “winning streak” is that “a majority of Roberts Court justices are ideologically conservative and religiously devout.”

The Freedom from Religion Foundation believes this streak is evidence of malign influence, according to the Deseret News. Thus, the foundation calls for the court to be reformed and expanded (presumably to gain a majority of justices who would rule against religious freedom claims). Another source cited in the article suggests there is a bias toward Christian claimants.

The Deseret News article and religious liberty scholars have a different response. They rely on the fact that “[i]n 9 of the 13 cases counted as Roberts-era wins for religious freedom in the study, liberals joined with conservatives in either a 7-2 or unanimous decision.” As University of Virginia law professor Douglas Laycock notes, this means that the makeup of the court is only a significant factor in a small number of cases which could be characterized as more controversial.

A variation on this reaction is that of Rick Garnett, a law professor at Notre Dame. He notes that the entire court, not just “conservative” members, are supportive of religious claims. Thus, he believes “it’s a mistake to frame the religious liberty question in terms of present-day left and right labels.”

So, what really are the reasons for the “winning streak”?

Of course, it is impossible to know, but some observations on the ideas in the Deseret News piece can add some insight.

Explaining the shift by pointing to the justices is more circular than illuminating. Of course, as the court’s personnel changes, its rulings will change. That is a given. What this proposed explanation does not grapple with are the potentially confounding factors of a changing legal and cultural climate.

For instance, the Supreme Court Review article points to a shift in the identity of religious liberty claimants away from minority religious groups to “mainstream Christian” groups. That may obscure rather than illuminate what is happening. As Laycock notes, there is no religious majority now, and “[b]y definition, no one comes to the court seeking legal protection until after it has lost in the political process.” So perhaps the court is extending its previous trend of protecting religious minorities to religions that once had majority status but are now minorities in America.

Also, the previous court decisions in favor of religious minority groups may have established the relevant legal principles in a way that sensitized government officials to the need to avoid harming these groups. Thus the more recent cases could merely reflect the court’s efforts to deal with legal issues that are largely unsettled.

An extension of that point is that changes in the court’s approach to religious issues may reflect different laws creating conflicts with religious freedom. It would be hard to imagine, for instance, a law passed between the 1950s and the 2000s requiring an order of nuns to provide contraceptives to their employees, or a state agency publicly comparing traditional religious teachings to Nazism.

The elephant in the room in this discussion is an even more basic fact: The U.S. Constitution specifically includes protection of “free exercise of religion” from government interference. So we should not be surprised when a majority of the U.S. Supreme Court enforces that guarantee consistently.

We should be more surprised if the court were to ignore this specific protection. In fact, rather than being worried and trying to bully the court into ignoring these claims, we should be grateful that they are being taken seriously.

More Insights

Solving our civic challenges: A Q&A with Andy Smarick

Solving our civic challenges: A Q&A with Andy Smarick

“Today’s political discourse is misleading us about our state of affairs, making us believe that things are far worse than in fact they are,” says Andy Smarick of the Manhattan Institute. He urges localism, among other things, to reestablish Americans’ sense of community.

read more

Connect with Sutherland Institute

Join Our Donor Network