The two newsletters for this week will focus on issues related to religion that, according to the latest Gallup poll, here in the U.S. is becoming less important in people's everyday lives. The article in the url below, however, suggests that this trend may not apply to the Supreme Court (SCOTUS). The article makes its case by summarizing an academic study showing how the Court is increasingly siding with organized religion (in particular, "mainstream Christian organizations") in the cases it decides:
"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."
Specifically, placing this claim in its historical context:
"The court led by Chief Justice Earl Warren, from 1953 to 1969, supported religion just 46 percent of the time. That grew to 51 percent under Chief Justice Warren E. Burger, from 1969 to 1986; then to 58 percent under Chief Justice William H. Rehnquist, from 1986 to 2005; and finally jumped to just over 81 percent under Chief Justice Roberts, who joined the court in 2005."
The study also notes that it is not only the frequency with which religious causes are supported that has changed, but also the nature of the groups that benefit from the Court's decisions:
"In the Warren court, all of the rulings in favor of religion benefited minority or dissenting practitioners. In the Roberts court, most of the religious claims were brought by mainstream Christians."
Perhaps not surprisingly, the study also notes the ideological nature of the shift, which it claims has been driven by the five Justices appointed by Republican presidents:
"The five most pro-religion justices all sit on the current court, the study found. 'The justices who are largely responsible for this shift are Clarence Thomas, Samuel Alito, Neil Gorsuch, John Roberts and Brett Kavanaugh,' the study's authors wrote. 'While there are some differences among these justices, and Kavanaugh has been involved in only a handful cases, they are clearly the most pro-religion justices on the Supreme Court going back at least until World War II.'"
And also that a similar shift has taken place in lower-level courts, in particular among the federal judiciary – a finding summarized in a second study that is also summarized in the article:
"In the five years through the end of 2020, [the study's author] wrote, federal judges' partisan affiliations had become powerfully correlated to their votes. 'And when the pandemic struck, resulting in widespread lockdowns of religious houses of worship,' he wrote, 'the unprecedented number of constitutional free exercise cases brought in such a condensed span of time forced that partisanship into sharp relief.' Even putting aside cases concerning the pandemic, a big partisan gap has opened in free exercise cases."
The courts have also used their ideological advantage to expand the application of the religion clauses of the constitution to more contemporary issues:
"More generally, claims of religious freedom, brought mostly by Christian groups, have increasingly been used to try to limit progressive measures like the protection of transgender rights and access to contraception. On top of that, a culture war erupted about how best to address the coronavirus."
The accusation by Justice Elena Kagan in a 2018 decision that "the court's conservative majority [is] 'weaponizing the First Amendment'" (see also Strategic CSR – The Rights of Corporations), seems to suggest we should expect more such polarizing decisions by the Court:
"'Just as the majority has weaponized free speech in service of business and conservative interests,' [Justice Kagen] said, 'it's using the religion clauses to privilege mostly mainstream religious organizations.'"
Take care
David
David Chandler
© Sage Publications, 2020
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An Extraordinary Winning Streak for Religion at the Supreme Court
By Adam Liptak
April 6, 2021
The New York Times
Late Edition – Final
A14
