WASHINGTON — “For many today, religious liberty is not a cherished freedom,” Justice Samuel A. Alito Jr. told the Federalist Society, the conservative legal group, in November. “It pains me to say this, but, in certain quarters, religious liberty is fast becoming a disfavored right.”
Those quarters do not include the Supreme Court, which has become far more likely to rule in favor of religious rights in recent years, according to a new study that considered 70 years of data.
The study, to be published in The Supreme Court Review, documented a 35-percentage-point increase in the rate of rulings in favor of religion in orally argued cases, culminating in an 81 percent success rate in the court led by Chief Justice John G. Roberts Jr.
“Plainly, the Roberts court has ruled in favor of religious organizations, including mainstream Christian organizations, more frequently 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 will not end soon and may accelerate.”
must include religious ones, that the Trump administration could allow employers with religious objections to deny contraception coverage to female workers and that employment discrimination laws do not apply to many teachers at religious schools.
And the court will soon decide whether Philadelphia may bar a Catholic agency that refused to work with same-sex couples from screening potential foster parents.
it changed positions on the one question on which religious groups had been losing: whether governors could restrict attendance in houses of worship to address the coronavirus pandemic.
There has been a similar shift in the entire federal judiciary in cases on the constitutional protection of the free exercise of religion.
Protecting that right, as Justice Alito pointed out in his speech, used to be a bipartisan commitment. In 1990, when the Supreme Court cut back on protections for free exercise, with Justice Antonin Scalia writing the majority opinion, Congress responded with the Religious Freedom Restoration Act.
“The law had almost universal support,” Justice Alito said. “In the House, the vote was unanimous. In the Senate, it was merely 97 to 3, and the bill was enthusiastically signed by President Clinton.”
Earlier studies, covering 1996 to 2005 and 2006 to 2015, found that judges’ partisan affiliations, as reflected by political parties of the presidents who appointed them, were not significantly tied to their votes in free exercise cases.
Zalman Rothschild, a fellow at the Stanford Constitutional Law Center, updated that 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 every level of the federal judiciary,” Mr. Rothschild wrote.