A new study of Supreme Court decisions dating to 1953 shows the nation’s highest tribunal has moved from supporting religious freedom less than half the time to almost always in recent years.
“The Roberts Court has ruled in favor of religious organizations far more frequently than its predecessors, over 81% of the time, compared to about 50% for all previous eras since 1953,” legal scholars Lee Epstein and Eric Posner Jr. wrote in the latest edition of the University of Chicago’s Supreme Court Review.
“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.
“A statistical analysis suggests that this transformation is largely the result of changes in the Court’s personnel: A majority of Roberts Court justices are ideologically conservative and religiously devout—a significant break from the past.”
The study examined 93 cases decided between 1953 and 2019, including 824 opinions issued by 31 justices. All of the cases studied involved issues under the free exercise and establishment clauses of the First Amendment concerning religious freedom.
Decisions were considered “pro-religion” when they were decided in favor of a religious organization or religious outcome, which is typically for plaintiffs in free exercise clause cases and for defendants in establishment class cases, according to the authors, who said more than half of the decisions were reported on the day following their publication on the front page of The New York Times.
Chief Justice John Roberts has led the court since being named to the position in 2005 by President George W. Bush. The study found that, compared to previous eras in the court’s history, a series of major decisions in the last two years has almost doubled the frequency of support for the First Amendment’s Free Exercise Clause guaranteeing the right to practice religion and assemble for its expression without government interference.
Many of these recent decisions were occasioned by multiple restrictions on churches imposed by Democratic Govs. Andrew Cuomo in New York and Gavin Newsom in California, as well as in other blue states.
The recent decisions are a marked change. Under Chief Justice Earl Warren, for example, the study found the court supported religious freedom only 45.5 percent of the time, while opposing it 54.5 percent.
Most often during the Warren Court era (1953–1969), decisions favorable to religious freedom came in cases involving non-mainstream, minority religious groups such as Jehovah’s Witnesses and Mormons that were deemed lacking in protection, according to the study.
For the era of Chief Justice Warren Burger’s tenure (1969–1986), cases were decided in favor of religious freedom 51.4 percent of the time, while under Chief Justice William Rehnquist (1986–2005), the favorable percentage increased to 58.1 percent.
In addition to the appointment of more conservative and religiously active justices in recent years, the authors noted that participation in religious freedom cases by the U.S. solicitor general—the Justice Department’s chief representative in arguing cases before the high court—increased to almost 88 percent under Roberts from only 9.1 percent under Warren.
The trend has influenced the court’s liberal wing as well. Justice Elena Kagan, at 75 percent, ranks as the eighth most-favorable to religious freedom among all of the justices since 1953.
Justice Stephen Breyer, with a 62.1 percent rating, is 13th. Justice Sonia Sotomayor, at 33 percent, is least favorable to religious freedom among the court’s current members, according to the study.
Religious freedom advocates interviewed by The Epoch Times agreed that the study points to what they deem to be a positive trend on behalf of a restoration of the court’s willingness aggressively to defend constitutional religious freedom.
But there are significant questions about Roberts, according to one of the advocates.
Matt Staver, founder and president of Liberty Counsel, an Orlando, Florida-based public interest law firm that specializes in First Amendment litigation, said he’s puzzled by Roberts’s inconsistent aligning with the pro-religious freedom majority.
“The problem that we’ve seen that raises the question but doesn’t change the statistics is where Chief Justice John Roberts has been coming down on these COVID cases,” Staver told The Epoch Times, referring to COVID-19, the disease caused by the CCP (Chinese Communist Party) virus.
“It should be a no-brainer that he would come down on the majority side against these government restrictions and in favor of churches and places of worship.”
Staver noted that in cases involving challenges to state restrictions on church worship due to the CCP virus, also known as the novel coronavirus, Roberts joined the majority only once.
“He’s only done that once, and that was our case, a 6–3 decision, but that restriction had to be a total ban on worship,” Staver said, referring to the Court’s Feb. 5 decision in the case of Harvest Rock Church in California.
In that decision, in which the plaintiffs challenged Newsom’s worship assembly ban, Roberts said, “The state’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”
Staver said “but for Amy Coney Barrett being on the court, many of these cases, except ours, would have gone the other way” due to Roberts.
Even so, all of the advocates said the overall trend is extremely encouraging to them.
“Opponents of religious liberty decry the last two decades of decisions protecting our First Freedom as some sort of historical aberration and special political favor,” First Liberty Institute Vice President Jeremy Dys told The Epoch Times.
“In reality, for most of our nation’s history, the inalienable rights enshrined in the First Amendment to the U.S. Constitution were unquestioned.
“In recent years, the court has restored many of our most precious freedoms, undoing much of the damage done by progressive politicians and Justices of the U.S. Supreme Court of prior decades.”
Similarly, Alliance Defending Freedom (ADF) Senior Vice President Kristen Waggoner said the court’s earlier hostility to religious freedom prompted the more recent positive trend.
“Government officials have weaponized the law to strike at the heart of beliefs held by millions of Catholics, Protestants, Jews, and Muslims,” Waggoner told The Epoch Times.
“This has resulted in the court facing an unprecedented number of cases where religious individuals and organizations are under fire, and we’re grateful the court has recognized the importance of the First Amendment in many of those cases.”
She pointed out that eight of ADF’s 12 Supreme Court victories since 2011 involved religious freedom cases.
“The First Amendment is good for everybody, not just Christians and not just those who are religious,” she said. “These freedoms make us all more free to speak and live without fear of government punishment.”
Waggoner argued ADF’s case that resulted in the court’s landmark 2018 Masterpiece Cakeshop decision that upheld owner Jack Phillips’s religious and artistic freedom to decline to create decorations for gay weddings.
