The Court Has Become More Protective of Religion Than Ever

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Last year, I discussed how in recent years the Supreme Court has become remarkably protective of religious freedom, including an unbroken line of victories in merits decisions going back a decade. Now the New York Times has highlighted two forthcoming articles that take note of a sea change in this area of the law. One study of the Court by Lee Epstein and Eric Posner looking at nearly seven decades of data concludes that the Roberts Court is much more likely than its predecessors to decide cases in favor of religious rights.

Specifically, examining cases that produced a judicial opinion relating to the Free Exercise or Establishment Clause and excluding those decided without oral argument, the authors found that the side advancing religious rights won 46 percent of the time during the Warren Court years, 51 percent during the Burger Court years, 58 percent during the Rehnquist Court years, and 81 percent under the Roberts Court through the past term. Others may use slightly different datasets, but the trend is unmistakable.

It was, Epstein and Posner conclude, enough of a change to call it a “transformation” in the law. Of course, “changes in the personnel of the Court” are “the most natural explanation for the transformation of religion jurisprudence.” No one would mistake the authors themselves for conservatives or fans of recent religion jurisprudence. But in their breakdown of performance by individual justice, they concede generally that “Republican and conservative justices are more pro-religion than other justices are” and specifically that “the top six most pro-religion judges” are Republican appointees who “sit (or [in the case of Antonin Scalia] sat) on the Roberts Court.” And that dataset did not even count the Court’s most recent arrival, Amy Coney Barrett.

This presents a stark contrast from the era of Supreme Court decisions that were often hostile to religion, such as the Court’s notoriously muddled test in Lemon v. Kurtzman (1971), striking down state aid to religious schools for secular instruction; and Lee v. Weisman (1992), which invalidated voluntary school prayer even when led by non-faculty at a graduation ceremony.

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A second study highlighted by the Times by Zalman Rothschild focused on the past five years of free exercise cases in federal courts and concluded that the results in such cases “now track[] political affiliation to a significant degree.” As religious organizations challenged state lockdown orders during the pandemic, the divide among lower courts was especially stark, with 66 percent of Republican-appointed judges ruling in favor of the religious organizations — a number that increases to 82 percent for the subset of Trump-appointed judges — and 100 percent of Democrat-appointed judges ruling in favor of the government. Even non–pandemic-related free exercise cases saw 72 percent of Trump appointees voting for and 90 percent of Democratic appointees voting against religion claims, with the overall total for Republican appointees split with 51 percent favoring government entities.

Epstein and Posner’s study will be published in the Supreme Court Review and is currently available here. Rothschild’s study will appear in the Cornell Law Review next year and is now available here.

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