WASHINGTON – “For many today, religious freedom is not a cherished freedom,” said Judge Samuel A. Alito Jr. said the Federal Society, the conservative right-wing group, in November. “It pains me to say that, but in certain areas religious freedom is quickly becoming an unfavorable right.”
These neighborhoods do not include the Supreme Court, which has ruled in favor of religious rights far more frequently in recent years a new study that took into account 70 years of data.
The study, to be published in The Supreme Court Review, documented a 35 percentage point increase in the rate of decisions in favor of religion in oral cases, culminating in an 81 percent success rate in court under Chief Justice John G. Roberts Jr.
“Obviously, the Roberts Court has ruled in favor of religious organizations, including mainstream Christian organizations, more often than its predecessors,” wrote the study’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 is not going to end anytime soon and may accelerate.”
(The court led by Chief Justice Earl Warren from 1953 to 1969 only supported the religion 46 percent of the time. From 1969 to 1986 it rose to 51 percent under Chief Justice Warren E. Burger and 58 percent under Chief Justice William H. Rehnquist , from 1986 to 2005, and eventually rose to just over 81 percent under Chief Justice Roberts, who joined the court in 2005.)
The type of cases the court hears has also changed. In Warren Court, all decisions in favor of religion benefited minority or deviant practitioners. In Roberts Court, most of the religious claims were made by mainstream Christians.
The five judges most responsible for religion all sit in the current court, the study found.
“The judges largely responsible for this postponement are Clarence Thomas, Samuel Alito, Neil Gorsuch, John Roberts and Brett Kavanaugh,” the study’s authors wrote. “While there are some differences between these judges, and Kavanaugh was only involved in a few cases, they are clearly the most religious Supreme Court justices, dating back at least to World War II.” All are Republican candidates.
In the last term alone, the court sided with Christian religious groups in three disputes. The court ruled that government programs to support private schools must include religious programs, that the Trump administration could allow employers with religious objections to deny contraception coverage to workers, and that workplace discrimination laws do not apply to many religious school teachers be valid.
And the court will soon decide whether Philadelphia could prevent a Catholic agency that has refused to work with same-sex couples from investigating potential foster parents.
After Judge Barrett joined the court, he changed his position on the one question that religious groups had lost on: whether governors could restrict attendance at places of worship in order to fight the coronavirus pandemic.
A similar shift has occurred throughout federal justice in cases of constitutional protection of the freedom to practice one’s religion.
As Justice Alito emphasized in his speech, the protection of this right was a cross-party obligation. In 1990 when the Supreme Court Reduce protection for free movementAfter Antonin Scalia’s judiciary gave the majority opinion, Congress responded with the Law Restoring Religious Freedom.
“The law had almost universal support,” said Judge Alito. “The vote in the house was unanimous. It was just 97-3 in the Senate, and the bill was enthusiastically signed by President Clinton. “
Previous studies, from 1996 to 2005 and 2006 to 2015noted that the partisan affiliation of judges, as reflected in the political parties of the presidents they had appointed, was not materially tied to their votes in free exercise cases.
Zalman Rothschild, Fellow at the Stanford Constitutional Law Center, has updated this data in a second study to be published in The Cornell Law Review. He found that things had changed.
“The politicization of religious freedom has infiltrated all levels of federal justice,” wrote Rothschild.
In the five years until the end of 2020, he wrote, the partisan affiliations of federal judges were strongly correlated with their votes. “And when the pandemic broke out, resulting in widespread closings of religious places of worship,” he wrote, “the unprecedented number of cases of constitutional freedom that have been initiated in such a shortened period of time forced this partisanship to a sharp relief.”
Even if cases related to the pandemic are set aside, a large partisan void has opened in cases of free exercise. Democrat-appointed judges in such cases have sided with religion 10 percent of the time over the past five years, compared with 49 percent for Republican-appointed judges and 72 percent for President Donald J. Trump’s appointment.
The numbers were even worse, Mr Rothschild wrote, in cases involving restrictions to fight Covid-19. Until late last year, not a single Democrat-appointed judge sided with religion in these cases, while 66 percent of Republican-appointed judges and 82 percent of Mr. Trump-appointed judges did.
What has changed in the last five years? It is probably no coincidence that the court introduced a constitutional right to same-sex marriage in 2015.
In general, claims to freedom of religion, made mainly by Christian groups, have increasingly been used to limit progressive measures such as the protection of transgender rights and access to contraception. In addition, a culture war broke out over how best to fight the coronavirus.
In 2018, Judge Elena Kagan accused the court’s Conservative majority:Weapon against the first change“To use the protection of freedom of expression” to intervene in economic and regulatory policy. “
Professor Epstein said something similar was going on in the court’s religious decisions. “Just as the majority has armed freedom of speech in the service of business and conservative interests,” she said, “it uses the religious clauses to privilege most mainstream religious organizations.”
