The Supreme Court has yet to issue a ruling in its biggest religion case this term, but a new report makes a victory for the Catholic foster care agency involved feel like a foregone conclusion.
The study, conducted by researchers at Washington University in St. Louis and the University of Chicago, shows that advocates of religious rights have logged an 81% success rate before the Supreme Court in the 16 years since Chief Justice John Roberts took the helm.
“Plainly, the Roberts court has ruled in favor of religious organizations, including mainstream Christian organizations, more frequently than its predecessors,” the study explains, noting that religion’s win rate used to hover around 50%.
According to the researchers, religion’s current hot streak primarily stems from changes in the makeup of the court rather than other factors, like growing cultural hostility toward faith.
In the Roberts era, it’s become almost unthinkable for conservative justices to rule against people of faith, they said.
“The justices who are largely responsible for this shift are Clarence Thomas, Samuel Alito, Neil Gorsuch, John Roberts and Brett Kavanaugh,” the study argues. “They are all clearly the most pro-religion justices on the Supreme Court going back at least until World War II.”
Critics of the Roberts court’s approach to religious freedom have seized on this finding to call for an overhaul of the legal system. They want the Biden administration to move quickly to add liberal jurists to the bench.
“It’s time for court reform and expansion!” tweeted the Freedom From Religion Foundation on April 6.
Study shows 81% success rate for rulings in favor of religion by the Roberts court. It's time for court reform and expansion!https://t.co/HP7SSRALKp— FFRF (@FFRF) April 6, 2021
Not just conservatives
What nearly all these calls for reform failed to note is that conservatives rarely acted alone when handing down victories for faith groups.
In 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, according to a Deseret News analysis.
“The new conservative majority is essential to the high-profile cases, but not to all the others,” said Douglas Laycock, a professor of law and religious studies at the University of Virginia, in an email.
For the most part, liberal justices only peel away en masse from their conservative colleagues when religious freedom is in tension with another important human right, he said.
“Most of the hot-button cases present conflicting interests that the liberals care about more, like gay rights, contraception or public health,” Laycock said.
Even that assessment slightly overstates the gap between liberals and conservatives, said Richard Garnett, director of the program on church, state and society at the University of Notre Dame. As recently as last year, two liberal justices, Elena Kagan and Stephen Breyer, joined with conservatives to rule in favor of two Catholic schools wanting to sidestep employment nondiscrimination law.
“That decision was 7-2 even though the government’s interest in these cases is limiting employment discrimination,” he said.
The court also ruled 7-2 last year in favor of the Trump administration and a group of Catholic nuns in upholding a policy enabling moral and religious objectors to birth control to avoid covering it in employee health plans.
Citing these and other recent decisions, Garnett argued that the Roberts court as a whole — not just its conservative members — should be seen as supportive of religion.
At the very least, Kagan and Breyer have earned that designation, since both fall in the top half of the study’s list of the most pro-religion justices to serve since 1953. Kagan is just a few spots behind her conservative colleagues.
“I think it’s a mistake to frame the religious liberty question in terms of present-day left and right labels,” Garnett said.
Surge in Christian cases
However, Steven K. Green, director of the Center for Religion, Law and Democracy at Willamette University, believes there is a difference in intensity of conservative and liberal support for religious freedom that justifies concerns about a pro-religion bias.
Looking at the data, it’s clear that the court’s conservative justices are putting their thumbs on the scale in favor of faith groups, he said.
“Breyer and Kagan have been more willing to sometimes decide against religious claimants. They take it on a case-by-case basis,” Green said. “Conservatives are just kind of going in lockstep about this.”
In some cases, conservative justices have actually presented themselves as defenders of faith, he added.
“Justices Alito and Thomas in their opinions have used language that mirrors the culture wars, like ‘the state is out to get religious believers,’” Green said.
For example, in a scathing dissent criticizing the court’s July decision to allowing the state of Nevada’s COVID-19 related restrictions on churches to stand, Alito wrote, “The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine or to engage in any other game of chance. But the governor of Nevada apparently has differently priorities.”
When you add opinions like that to the significant winning rate that religion has had, “it does seem to suggest that some of these cases are being decided on the basis of justices’ ideology and not so much on the facts,” Green said.
Such an approach to decision-making would always be controversial, but it’s especially so right now since Christians, rather than members of other faiths, are the primary benefactors. Many observers question why the court needs to repeatedly intervene on behalf of a religion that has historically had plenty of political and cultural power.
“There’s been a shift in the character of the religious liberty claims” that make it to the Supreme Court, Green said.
Critics of the court sometimes imply that this shift stems from Christian favoritism. But others argue that it makes sense for Christian groups to need more help these days.
“The court’s critics say it is now protecting the religious majority, but that’s not true,” Laycock said. “By definition, no one comes to the court seeking legal protection until after it has lost in the political process.”
The Catholic agency involved in the current Supreme Court case, for example, was unable to convince the city of Philadelphia to exempt it from anti-discrimination rules governing the foster care system. The agency lost its government contracts when the city learned it was not willing, for religious reasons, to assess whether same-sex couples were fit to be parents. Catholic officials say the city’s decision to freeze it out of contracting work violates the Constitution’s free exercise clause.
“There is no religious majority” in the U.S. anymore, Laycock said. “We are all minorities now.”
‘It’s not a zero-sum game’
The idea that American Christianity is vulnerable may be a difficult development to grasp, but that doesn’t make it false, Laycock added. People who claim otherwise may be motivated by animosity toward conservative Christian beliefs.
“Conservative Christians are one of the least popular minorities because their public spokespeople so often sound hostile or even hateful to so many others (and) because they would deny fundamental rights they disapprove of to so many people who desperately need the protection,” he said, noting that their support for former President Donald Trump further damaged their reputation.
What’s often forgotten is that Christian victories at the Supreme Court benefit more than just Christians, Garnett said. In the context of free exercise cases in particular, precedents set by the Roberts court make it easier for members of any faith group to live out their beliefs.
“It’s not a zero-sum game. It’s hardly the case that it’s Christians versus others,” he said.
And, despite the publicity that surrounds their lawsuits, Christians are still less likely than people of other faiths to be involved in religious freedom battles if you look at the legal system as a whole, Garnett said.
“The vast majority of religious liberty claims involve members of minority religious groups, not evangelical Christians,” he said.