The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait

Abstract

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. 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. We also explore other possible explanations. The Roberts Court has handed down a number of decisions that suggest a new approach to Court’s religion jurisprudence. The religion clauses of the First Amendment were once understood to provide weak but meaningful protection for non-mainstream religions from discrimination by governments that favored mainstream Christian organizations, practices, or values. The religion clauses provided little protection for mainstream religions—indeed, under the establishment clause, mainstream religion’s influence over government policy was restricted. Under the Roberts Court, the religion clauses have increasingly been used to protect mainstream Christian values or organizations that are under threat from secular laws or liberal constitutional protections. Or so it has been argued. Some legal scholars have denounced this apparent turn to the right, while others see only small changes that incrementally move the jurisprudence in a direction more faithful to constitutional values.2 It is always hazardous to claim a “transformation” in the law, especially in medias res. Ideological or jurisprudential disagreements can be lost in the complexities of the facts. The justices 1 Lee Epstein is the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis; Eric Posner is the Kirkland & Ellis Distinguished Service Professor of Law and the Arthur and Esther Kane Research Chair at the University of Chicago. Epstein thanks the John Simon Guggenheim Foundation, the National Science Foundation, and Washington University for supporting her research on judicial behavior. We thank Aziz Huq for helpful comments, and Sima Biondi, Lina Dayem, Kelly Gregg, Kenny Mok, and Candice Yandem, for research assistance. The project’s website (http://epstein.wustl.edu/research/ReligionInCourt.html) will house a full replication archive, including the data and documentation necessary to reproduce all results. 2 See Erwin Chemerinsky and Howard Gillman, Symposium: The unfolding revolution in the jurisprudence of the religion clauses (SCOTUSblog, Aug 6 2020), archived at https://perma.cc/43BS-KQAS; Richard Garnett, Symposium: Religious freedom and the Roberts court’s doctrinal clean-up (Scotusblog, Aug 7 2020), archived at https://perma.cc/7P5E-HP4Z; Kim Colby, Symposium: Free exercise, RFRA and the need for a constitutional safety net (Scotusblog, Aug 1